Iraq: Camp Ashraf
	 — 
	Question

Lord Maginnis of Drumglass: To ask Her Majesty's Government what steps they have taken to defend the human rights of Iranian refugees at Camp Ashraf; and with what other countries or agencies they are involved in those efforts.

Baroness Kinnock of Holyhead: My Lords, officials at our embassy in Baghdad and at the Foreign Office follow developments at Camp Ashraf closely. We have raised Camp Ashraf with the Iraqi Prime Minister, the Human Rights Minister, the Minister of Internal Affairs and, recently, my ministerial colleague Ivan Lewis with the Foreign Minister, to remind them of the need to deal with the residents in a way which meets international humanitarian standards. We are in contact with international partners and UN agencies. Camp Ashraf is part of a sovereign and democratic Iraq and is primarily an issue for the Iraqi authorities to address.

Lord Maginnis of Drumglass: I thank the Minister for that Answer. As it was the Government who invaded Iraq on flimsy evidence, and who sacrificed our troops and placed a new Iraqi regime in power, how do they justify walking away from the responsibility for what has been left behind in respect of the oppression, murder and torture of those Iranian refugees in Camp Ashraf who share our loathing of Ahmadinejad's murderous regime in Iran? Do they care that currently Camp Ashraf-

Noble Lords: Move on!

Lord Maginnis of Drumglass: Do they care that currently Camp Ashraf residents are being denied food, medicine and winter fuel, and live under a real threat of being moved by Nouri al-Maliki's troops-

Noble Lords: Order!

Baroness Royall of Blaisdon: My Lords, perhaps I may remind noble Lords that their questions should be brief, as should the Minister's responses.

Baroness Kinnock of Holyhead: I can confirm that we consistently remind the Iraqi Government of all their international obligations on this matter. The Iraqi Ministers confirm that the Government are in discussions with the camp leadership and that they will treat the people in the camp in line with international humanitarian law. There is absolutely no evidence of the kind of intimidation and harassment which the noble Lord has described. Indeed, the access to food and medicines, to clean water and medical supplies, clearly exists. There have been some disruptions to supplies entering the camp, but I understand that all those have been resolved.

Lord Waddington: My Lords, does the noble Baroness agree-

Lord Archer of Sandwell: My Lords-

Lord Eden of Winton: My Lords-

Noble Lords: Waddington!

Lord Hunt of Kings Heath: My Lords, this works only if noble Lords are prepared to give way. Shall we hear from my noble and learned friend first and then from the Conservative Benches?

Lord Archer of Sandwell: Does my noble friend accept that to deliver the refugees into the hands of the Iranian regime would, for some of them at least, be the equivalent of a death sentence? Does she further accept that the attack on Camp Ashraf by Iraqi forces in July, leaving 11 dead, establishes that it cannot safely be left in Iraqi hands? Is this not a matter that we should discuss with our American allies?

Baroness Kinnock of Holyhead: I can assure my noble and learned friend that these matters are regularly raised by our ambassador and others with the United Nations and with the authorities in Iraq. It is the long-stated wish of the Iraqi authorities to close the camp and transfer the residents, but they have given us clear assurances, most recently at a meeting on 27 January, that they will do that in line with international and humanitarian law and that no Ashraf residents will be forcibly transferred to a country where they have reason to fear persecution or where substantial grounds exist to believe that they could be tortured.

Lord Waddington: My Lords, does the Minister agree that it is very important that we should be clear about the responsibility for this matter? Is it not right that back on 13 April last year, our ambassador in Baghdad called on the Iraqi Minister to seek new assurances that the residents of Ashraf would be treated humanely? Was that not an acknowledgement of the British Government's responsibility for the welfare of the people of Ashraf? Indeed, how can the British Government avoid their responsibility for the welfare of the people of Ashraf when, first, they were a party to the invasion of-

Noble Lords: Order!

Lord Waddington: I do not think I am being very long. First, they were party to the invasion of Iraq and, secondly, they were party-

Noble Lords: Too long!

Baroness Royall of Blaisdon: My Lords, what is good for the goose is good for the gander. The Companion reminds us that we should ask no more than two questions when questioning Ministers. I respectfully urge noble Lords to recall that.

Baroness Kinnock of Holyhead: I thank the noble Lord for the questions. I can assure him, as I did in my Answer to the noble Lord, Lord Maginnis, that Iraq is a sovereign and democratic state and, as such, has that responsibility. It has never been the case that the UK has responsibility for the residents in the camp. However, as I have said on a number of occasions, the UK works with the United States and the United Nations to ensure that the rights of the residents of Camp Ashraf are protected.

Baroness Falkner of Margravine: My Lords, will the Minister confirm that these people are not non-protected persons under the Geneva Convention? If that is correct, do the Iraqis have the right to deal with them within internal Iraqi constitutional law? Have the results of the inquiry come out yet?

Baroness Kinnock of Holyhead: The view of the UK Government is that with the formal end of hostilities and the transfer of responsibility for the camp to the Iraqi authorities, any claim to protected person status by the camp's residents under the fourth Geneva Convention has ceased to apply. That view is shared by the United Nations. The camp leadership have been given that information. As for the inquiry into the violence that occurred in July, we asked for a review of the events that took place. The ambassador met the Minister responsible on 27 January and reminded him of the need to send a copy of the report. We are still waiting to receive it. I will urge the ambassador to press again for a response from the Government.

Lord Alton of Liverpool: My Lords, how does the Minister square her statement to the House that there is no evidence that the residents of Camp Ashraf are at risk with the statement from Amnesty International that they are at risk of,
	"arbitrary arrest, torture or other forms of ill-treatment, and unlawful killing"?

Baroness Kinnock of Holyhead: My Lords, I can only reiterate what my noble friend Lord Brett said in the answer that he gave to that question. We have no evidence of intimidation or harassment in the camp. I am aware of the Amnesty International report. The recent UN mission reported that the camp is calm and that the residents have access to food, water and medical supplies. We have no evidence of intimidation, harassment and the other issues raised by Amnesty International.

Fishing: Discards
	 — 
	Question

Lord Teverson: Lord Teverson to ask Her Majesty's Government what proposals they have following their estimate that, of 37,000 tonnes of cod, haddock, plaice, sole, anglerfish and other demersal species caught by English and Welsh registered vessels in the North Sea and south western waters during 2008, 9,400 tonnes were discarded.

Lord Davies of Oldham: My Lords, the UK Government are funding initiatives to address discards, working together with the fishing industry. These include limitations on fishing effort, improving gear selectivity and closures that protect spawning and undersized fish. The UK has also committed, with Denmark and Germany, to trial a catch quota management system. Through the review of the common fisheries policy, we are working towards a European discard policy that applies to all member states, regardless of where they fish.

Lord Teverson: I thank the Minister for that reply, but I am rather disappointed. The Secretary of State for the Environment called last month for a ban on waste food, yet he is responsible for discards whereby we throw away a quarter of our most precious species. Is that not obscene, and should not the UK Government insist, in relation to the common fisheries policy, that like Canada, Norway, Iceland and New Zealand, we should have a ban on discards? Why cannot the EU do that when other nations can?

Lord Davies of Oldham: My Lords, of course the Government are opposed to discards; the problem is monitoring and controlling them. The issue is exacerbated by the developments in gear which have led to the catching of a greater amount of fish of the wrong kind as far as the fishing boat is concerned. However, we are making progress and have almost halved the tonnage of discards in the past 10 years. We are also spending considerable sums on it, pursuing initiatives and responding to the European Commission's request that further action be taken.

Lord Taylor of Holbeach: My Lords, will the Minister tell the House what lessons the Government have learnt from the Norwegian experience in these matters, and have the Government put pressure on the EU to look at the situation of France and Spain and to insist that they report accurately their discards to the EU?

Lord Davies of Oldham: My Lords, we are critical of other countries that do not reach the same standards and are perhaps not putting in the same level of investment as we do. Nevertheless, monitoring is certainly the problem with regard to discards. That is why we are piloting electronic measurement on-ship and encouraging British fishermen to participate in initiatives to monitor the nature of the catch and ensure that discards are kept to the absolute minimum, with the expectation that the rest of Europe will follow any successful development of that policy.

Lord Sewel: My Lords, can the Minister tell us what progress is being made with the revision of the common fisheries policy? In his Green Paper, the outgoing Commissioner drew attention to the possibility of making progress on a ban on discards. What is the progress on that subject?

Lord Davies of Oldham: My Lords, the Commission asked all member countries with fishing interests to submit proposals for the reform of the common fisheries policy by the beginning of this year. The submissions had to be in before December and we met that deadline. The Commission will publish the responses from the nations concerned with fishing, with a view to developing a fresh approach to the fisheries policy, which we all recognise is in need of very considerable reform.

Baroness Wilcox: My Lords-

Lord Willoughby de Broke: My Lords-

Lord Hunt of Kings Heath: My Lords, we have not yet heard from UKIP.

Lord Willoughby de Broke: I am most grateful to the noble Lord. Could the Minister confirm that the countries mentioned by the noble Lord, Lord Teverson, in his second question-countries which all run successful fisheries policies-are all outside the European Union? Would it therefore not be better for this country to follow their path, repatriate the common fisheries policy and run it from the UK in the interests of UK fisheries?

Lord Davies of Oldham: My Lords, there is still the question of who fishes in which waters. The noble Lord will readily accept that the fishing fleet of Spain, for instance, has been significantly expanded in recent years. It is important that we have a common fisheries policy that ensures that the practices that are followed by the Spanish, and to an extent by the French, are the high standards that we are trying to set, particularly with regard to our discard policy for British fishermen.

The Countess of Mar: My Lords, what is the logic behind discards? Fish tend to swim not in isolation but in shoals of different sorts of fish. Why, when we are short of fish to eat, are we throwing into the sea fish that could easily be eaten, just because they happen to be the wrong sort of fish for that particular boat?

Lord Davies of Oldham: My Lords, the fishermen have to make a living. Their problem is that only certain fish are marketable and economic to land, to say nothing of the fact that new gear tends to catch in its nets a whole lot of sea animals and fish that are really not edible and which are therefore discarded. The noble Countess is right; we want to change the gear that is used so that it is appropriate for the commercial fish to be landed. That is exactly what the British Government are seeking to achieve.

Lord Harrison: My Lords, do we not also want a change of gear in education policy in this country so that we can encourage people to eat edible fish that is highly enjoyable but that is currently being discarded?

Lord Davies of Oldham: My Lords, I hesitate to cross the British people when it comes to the traditional fish that they enjoy. My noble friend is right that the British public are finding increasingly palatable fish to which we have not been used in the past, but that does not alter the fact that we need to protect the fishing grounds of our traditional fish, too.

Universities: Higher Education Framework
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	Question

Tabled By Lord Judd
	To ask Her Majesty's Government what discussions they have had with universities about safeguarding social science and humanities research in the Future of Higher Education Framework; and what reassurances they have given.

Lord Judd: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as someone involved both in a professional and lay capacity in the work of universities.

Lord Young of Norwood Green: My Lords, the Government will continue to invest in the very best research in the social sciences and humanities in UK higher education institutions. Funding through the economic, social sciences, arts and humanities research councils combined is due to rise to £286 million in 2010-11. The Higher Education Funding Council for England's research allocations for social sciences and humanities for 2009-10 total £517 million, and we are maintaining research funding to HEFCE in 2010-11.

Lord Judd: My Lords, does my noble friend not agree that the social sciences and humanities are indispensible to generating an economically and socially successful society and to effective leadership in all dimensions of that society? Is there not a desperate need to reassert qualitative concerns in education as well as quantitative concerns? Is it therefore not important to realise that however significant STEM subjects are, STEM subjects without balancing research in social sciences can be dangerous?

Lord Young of Norwood Green: I thank my noble friend for those remarks. We agree with him on the importance of arts and humanities research. While the arts and humanities research councils might not be as large as some other research councils, such as STEM research councils, it must be understood that social science and humanities researchers have significantly less need for expensive equipment and laboratories. The cross-council programmes bring social science and humanities expertise to bear on some of the most pressing issues of the day, such as living with environmental change, ageing, lifelong health, and well-being.

Lord Krebs: Does the Minister recall that the research councils are now asking investigators to comment on the impact of their research when they apply for a grant? Does he agree that to understand the impact of the research you have to understand the outcome of the research and that it is therefore fatuous to ask researchers to comment on the outcome before they have completed the research or have even started it?

Lord Young of Norwood Green: My Lords, we are looking for quality-related research. The plain fact is that the funding for non-STEM subjects through quality-related research increased to £517 million in this academic year. We are maintaining that funding in real terms through HEFCE for 2010-11.

Baroness Garden of Frognal: My Lords, UK universities are world leaders in the humanities and social sciences. More than 50 per cent of overseas students are drawn to study here by the excellence of teaching and research. From the figures that he has already produced, perhaps the Minister could clarify the latest figures given by Mr David Lammy on 20 January. They indicated that the Arts and Humanities Research Council granted around £60 million last year, which was about 5 per cent of the combined research council funding. Is the Minister satisfied that such levels of funding are sufficient and balanced to ensure the highest standards that we need in these departments?

Lord Young of Norwood Green: I thank the noble Baroness for her question. The international comparative performance of the research base published in September 2009 shows that social sciences and humanities in the UK maintain their ranking in the G8 in numbers of papers and citations, ranking second only to the USA. Since the Arts and Humanities Research Council was created on 1 April 2005, funding has been increased by 35 per cent from £80 million in 2005-06 to £109 million in 2010-11. The AHRC will spend some £56 million this year in supporting a wide range of research in universities.

Lord De Mauley: My Lords, I did not detect an answer to the question asked by the noble Lord, Lord Krebs. Does the Minister accept that in order to ensure that social science and humanities research is adequately funded, the research excellence framework should be reviewed to assess whether the weighting towards impact needs to be amended?

Lord Young of Norwood Green: I am not sure that I am competent to answer that question. I would rather not just have a go-I would rather get it right-tempting though the offer is from the Opposition. I will write on that aspect. I understand the point that is being made about impact and outcome, but surely the most important thing is ensuring that we get the right funding for research. At the same time we should recognise our standing internationally.

Lord Quirk: My Lords-

Lord Morgan: My Lords-

Lord Hunt of Kings Heath: My Lords, we have yet to hear from the Labour Benches. We have already had one question from the Cross Benches.

Lord Morgan: My Lords, are not the problems that we see at the LSE an example of the difficulties that can be created? In particular, is it not worrying that emphasis in the changed criteria for research on the economic impact is necessarily disadvantageous to the humanities and the social sciences? Are we not putting at risk one of the glories of our educational system?

Lord Young of Norwood Green: I thank my noble friend for that question. We do not think that we are putting those subjects at risk. Clearly, there is a balance to be struck. The share of funding for non-STEM subjects did not decline. In fact, funding for non-STEM subjects increased, although not as much as it would have done. Again, I stress the need for a balance. We need also to protect STEM from a decline in funding to get us out of the downturn and to equip our next generation with the skills to compete in global, high-skilled knowledge-based economies, and I make no apologies for that. Anyway, the two groups are complementary.

The Lord Bishop of Lincoln: My Lords, the Minister answered the question put by his noble friend Lord Judd in terms of the levels of funding in the recent past, but has not answered it with regard to reassurance for the future. Given the Government's rather dubious criteria of functionality to render educational research worthwhile, is he aware that recent evidence suggests that for every £1 invested in humanities research, a return of some £10 is made to the economy? Thus, even on the Government's own criteria of the value of educational research, ring-fencing it for the future would be justified.

Lord Young of Norwood Green: I agree with the right reverend Prelate that the creative economy is fundamentally important. I shall finish on this because we are running out of time. The combined budget of the Arts and Humanities Research Council is due to rise from £247 million in 2008-09 to £286 million in 2010-11. We are pledged to the future as well as the past.

UK Border Agency: Asylum Seekers
	 — 
	Question

Lord Dholakia: To ask Her Majesty's Government whether they will investigate claims that asylum seekers were mistreated by staff of the UK Border Agency.

Lord Brett: My Lords, an internal investigation into allegations that appeared in the Guardian newspaper on 2 February has been commissioned. The Home Office expects the highest levels of integrity and behaviour from all its members of staff and takes all allegations of inappropriate behaviour very seriously.

Lord Dholakia: My Lords, the jailing yesterday of Ali Dizaei 10 years after the Macpherson report on institutional racism clearly demonstrates that racist behaviour or racism of any kind is not acceptable. The Guardian report clearly illustrates the culture of impunity among some staff in the UK Border Agency. Will the Minister revisit the decisions taken by the agency in relation to asylum seekers who have been deported to ensure that racism played no part whatsoever, and will he ensure that the inquiry looks at the wider aspects of race relations in the agency?

Lord Brett: My Lords, I agree entirely with the noble Lord that racism should play no part in decision-making in relation to asylum issues, and I am rather astonished that he would claim that the fact that there has been an allegation means that there is impunity. We do not know that. We know that an allegation has been made that will be seriously investigated independent of the department and separate from the Cardiff office. People have been accused of things for which they have not yet been found guilty. If there is guilt to apportion, it will mean that lessons have to be learnt. The noble Lord's latter point of ensuring that there have been no deportations as a result of racism is important. The removal stage is reached only after consideration by the Immigration Appeal Tribunal. I am confident that the inquiry will find a solution to the problem and verify whether the allegations are correct. However, at this point I think we should work on the old premise that people are innocent until proven guilty.

Lord Elton: My Lords, if the inquiry endorses the claims that have been made about this behaviour, will the Government bear it in mind that immigration officers hold powers at least equivalent to those of police officers for interviewing suspected criminals, because they can temporarily incarcerate and deport people? Is it not therefore right that immigration officers should be subject to the same camera and voice recordings when such interviews are carried out?

Lord Brett: My Lords, again we seem to be leaping forward from a point made in a newspaper article. I cannot say that every article that I have ever read has been 100 per cent accurate, although I believe that this should be investigated. However, we should await the outcome of that investigation before we rush to judgment.

Lord Avebury: My Lords, the Minister will recall the report published in July 2008 by the Medical Justice Network on private contractors' abuses against deportees, which was reinforced a year later by the report of the chief inspector, who stated that safeguards to protect against abuses of the process were "singularly lacking"? What has happened to the report by the noble Baroness, Lady O'Loan-then Dame Nuala O'Loan, the Northern Ireland ombudsman-who was supposed to be inquiring into these abuses and the lack of any proper remedy? When is her report going to be published?

Lord Brett: I have taken note of the noble Lord's question and will respond to him about the report and the follow-up. It has to be said that after those allegations were made, there was a change in the regime. With the noble Earl, Lord Listowel, I had the privilege of visiting Yarl's Wood, about which one of the major accusations was made. We were shown the major changes that had been made to how that place operates. I am confident that the issues of a year or two ago referred to by the noble Lord are no longer the norm.

Lord Judd: Does not my noble friend agree that this is not simply a management problem but also a cultural one? We are asking staff members to do extremely difficult work in these centres, so training is crucial. Central to that training should be an understanding that the government strategy is to win hearts and minds, not to increase alienation.

Lord Brett: I agree entirely with my noble friend but I believe the training to be thorough, and that the great majority of the 24,000 people employed by the UKBA not only understand our training but actually treat asylum seekers as they should be treated-as human beings with a problem and with legal rights. If we are talking about any, it is a tiny minority. Frankly, I doubt that the problem is as great as is sometimes suggested in the Daily Mailand other newspapers.

Lord Skelmersdale: None the less, my Lords, the Minister has made a stout defence of something which may or may not turn out to be indefensible. Can he explain why the head of the UK Border Agency has had on occasion to issue a sincere apology to immigrants; and have any agency staff been given written warnings or been dismissed in the past 12 months?

Lord Brett: I always delight in the noble Lord's questions. They are always very precise and usually defeat me in terms of the information available in my brief. I will respond to him on the latter point, namely the question of any warnings. It has to be said that the UK Border Agency has been dealing with a whole series of backlog asylum investigations. In fact, there is a significant report published today, Fast and Fair? from the Parliamentary Ombudsman, which has some criticism of the UK Border Agency-a genuine criticism which I think the agency will take on board. It is the fourth report of the ombudsman. It says, "Significant improvement but must try harder". It sounds like one of my school reports, except the word "significant" was never used.

The Earl of Sandwich: My Lords-

Baroness Williams of Crosby: My Lords-

Lord Hunt of Kings Heath: My Lords, I wonder if we can hear from the noble Earl.

The Earl of Sandwich: Would the Minister accept that he was a little dismissive of the question asked by the noble Lord, Lord Avebury? It was only last summer that Her Majesty's inspector of prisons reported, and these are not isolated incidents; they are a policy.

Lord Brett: I would be no more dismissive of a question from the noble Lord, Lord Avebury, for whom I have a tremendous regard, than I would indeed from the noble Earl, for whom I also have a tremendous regard. I did say I would look into the issue and respond, and I will. If I gave the impression of being dismissive, I apologise to the House.

Allhallows Staining Church Bill [HL]

Main Bill Page
	Copy of the Bill

Second Reading

Bill read a second time and referred to the examiners.

Kent County Council (Filming on Highways) Bill [HL]

Main Bill Page
	Copy of the Bill

Second Reading

Bill read a second time and committed to an Unopposed Bill Committee.

Live Music Bill [HL]

Main Bill Page
	Copy of the Bill

Third Reading

Bill passed and sent to the Commons.

Arrangement of Business
	 — 
	Announcement

Lord Bassam of Brighton: My Lords, before we begin the Second Reading of the Terrorist Asset-Freezing (Temporary Provisions) Bill, it may be helpful if I say a few words about anticipated timings for the remainder of today's business.
	There are five speakers on the list for Second Reading, so we anticipate Committee on the Equality Bill to follow it at around 4.30 pm. We would then aim to continue with the Equality Bill until around 6.30 pm, when we would take Committee stage of the terrorist asset-freezing Bill. The intention would then be to resume proceedings on the Equality Bill at a later stage this evening after completion of Committee on the terrorist asset-freezing Bill. The deadline for tabling amendments for Committee on the terrorist asset-freezing Bill will be 5.30 pm.
	There is a great deal of important business to get through today, and I am sure that all noble Lords will wish to make effective use of the time available, while ensuring proper and efficient scrutiny of the legislation before the House. As is usual on days like today, expected timings of business will be displayed from time to time on the Annunciators.

Terrorist Asset-Freezing (Temporary Provisions) Bill

Main Bill Page
	Copy of the Bill
	Explanatory Notes

Second Reading

Moved By Lord Myners
	That the Bill be read a second time.

Lord Myners: My Lords, the Terrorist Asset-Freezing (Temporary Provisions) Bill makes provision for the temporary validity of Orders in Council that impose financial restrictions on, and in relation to, persons suspected of involvement in terrorist activity, and for connected purposes.
	The whole House will, I know, understand that terrorism continues to pose a threat to the UK. The Home Secretary recently raised the UK terrorist threat level to "severe", meaning that an attack on the UK is highly likely at any time. As noble Lords know, terrorist organisations including al-Qaeda have executed or planned a succession of attacks with the aim of causing mass casualties. Measures to prevent terrorist finance are at the heart of the international effort against terrorism. Without resources, terror networks are unable to plan, to organise or to execute attacks. For this reason, the United Nations requires that all states freeze, without delay, the assets and resources of people who commit, attempt to commit, participate in or facilitate the commission of terrorist acts. Our tools to combat terrorist finance therefore, have become an important part of the UK's counterterrorist strategy. Our measures must be proportionate but they must also be robust and effective. Terrorist attacks are not expensive, and even small amounts of money in the wrong hands can cause devastation. The attacks in London on 7 July 2005 cost the perpetrators just £8,000.
	While financial sanctions have a long history, their use against terrorists is only around a decade old. The UN Security Council established an asset-freezing regime against the Taliban in 1999. It was quickly extended to include Osama bin Laden and persons associated with al-Qaeda. In the weeks after 9 September 2001, the UN created a separate requirement on member states to freeze the assets of those involved in terrorism more generally, where those individuals were identified by member states. The UK acted quickly; using secondary legislation under the United Nations Act, we were able to ensure that our freezing regime was in place by 10 October 2001, only 12 days after the UN Security Council passed the resolution.
	Some people have asked why we used secondary legislation under the UN Act in the first place rather than putting our regime into primary legislation. The answer is that in good faith we believed that the United Nations Act was the right legal base. Section 1 of the United Nations Act has been used since 1946 as an established basis for successive Governments to implement our UN obligations on matters concerning threats to international peace and security. Section 1 of the UN Act says:
	"If, under Article forty-one of the Charter of the United Nations, the Security Council of the United Nations call upon His Majesty's Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied".
	Given that there are clear UN Security Council obligations to freeze the assets of terrorists, the Government believed that the UN Act gave them legitimate authority to make secondary legislation to freeze terrorist assets. The Court of Appeal upheld the Government's position. The Supreme Court decided on 27 January 2010 that the United Nations Act does not go so far as to give us that authority and that the Orders in Council we have used were therefore not validly made.
	However, I hope noble Lords will appreciate that until the Supreme Court made its judgment, the correct interpretation of the United Nations Act was unclear. The Government acted in good faith when using it as the basis for implementing UN asset-freezing obligations.
	The Supreme Court ruled that the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 were beyond the scope of the power provided by Section 1 of the United Nations Act 1946, and quashed both orders. On 4 February, it ruled not to grant the Government any stay or pause before its judgment took effect.
	Assets frozen under the UN regime on al-Qaeda and the Taliban remain frozen under the effectively parallel EC regulation. However, the Supreme Court's judgment has the effect of removing the sanctions for breach of its provisions, so we will attach sanctions to the EC regulation through secondary legislation. This will be debated in the House in due course through an affirmative procedure.
	The court then also struck down the terrorism order 2006, and in so doing rendered vulnerable the terrorism orders of 2001 and 2009. There is no back-up EC regulation for the UK's designations under the terrorism orders. Primary legislation is therefore needed to ensure that we can continue to freeze terrorist assets.
	Currently, more than £150,000 is frozen in the UK under the terrorism orders. We need to act quickly to ensure that this money remains frozen and that suspected terrorists are not allowed to use the financial system to raise and move funds. That is why this Bill is being fast-tracked, with all stages being considered in this House in one day. I appreciate that one day is inadequate to consider legislation of this significance, but I hope noble Lords will understand why we need to act quickly.
	The Bill seeks to provide a temporary legal base for the Orders in Council, aimed at freezing assets of those we reasonably suspect are involved in terrorism where it is necessary to protect the people of this country. This Bill will, if passed, restore the UK's terrorist asset-freezing regime in primary legislation as a stop-gap, before a full Bill can be considered and, I hope, passed into law. This course of action allows the House to scrutinise our proposals, while eliminating any risk of a gap in our asset-freezing regime. Through this action we are able to provide legal protection for the banks, to ensure that terrorist assets remain frozen, even though the Supreme Court judgment was not stayed. We have already published the full Bill to which today's legislation is merely a bridge. I hope the House will agree that the fuller Bill deserves a great deal of scrutiny.

Lord King of Bridgwater: When that fuller Bill is considered in the House, will it take account of the fact that, while this freezes some terrorist assets at present, many terrorists are closely involved in serious organised crime? The figures the Minister has given for what is actually going to be frozen under this are minute compared to the resources available to some of these organisations. One of the tragedies of recent years and successive Administrations around the world is the total failure to deal effectively with money-laundering by terrorists and serious organised crime.

Lord Myners: I note the observation from the noble Lord, Lord King. Matters relating to serious organised crime are already dealt with by other agencies and legislation. This legislation focuses on the use of finances that are specifically related to the risk of terrorism activity which threatens the United Kingdom. No doubt the authorities will at all times be vigilant in recognising the area where organised crime may well abut terrorist activity, and will be alert to ensure that we are vigilant in addressing that risk.
	I should make it clear at the outset that today's Bill, and the fuller Bill, seek only to restore the asset-freezing regime that is implemented through the terrorism orders- that is, the regime mandated by UN Security Council Resolution 1373, where listings are made at the national level. The Bill does not seek to restore the UN al-Qaeda and Taliban asset-freezing regime. That is the regime mandated by UN Security Council Resolution 1267, where listings are made at the UN. As I mentioned earlier, the al-Qaeda regime remains in effect through a directly applicable EC regulation. Noble Lords will be aware that the Supreme Court had specific concerns about the UN al-Qaeda regime-in particular, the lack of direct access to a court for people who are listed at the UN. Those specific concerns do not arise on this Bill, because it seeks only to restore the terrorism order regime, where decisions are made nationally and individuals have access to UK courts.
	With the House's permission, I shall briefly outline the Bill's effects. It seeks to maintain the Treasury's power under the Orders in Council to designate persons if they meet both the required conditions of a legal test: reasonable suspicion that the person is involved in terrorist activity, and that the designation is necessary for public protection. The effect of a designation is to forbid dealing with a designated person's funds and economic resources; to forbid making funds or economic resources available to such persons, and to forbid funds or economic resources being made available to a person when the designated person will obtain significant financial benefit. The orders will continue to provide for licences to permit access to funds and to ameliorate the effect of the sanctions. The Treasury will remain open to legal challenge to its asset-freezing decisions, including the procedures approved by Parliament in the Counter-Terrorism Act 2008.
	Perhaps I might turn briefly to retrospection. The Bill makes retrospective provision in one respect only. It gives retrospective legal authority for banks and any other institutions to maintain existing freezes between the dates of the Supreme Court judgment-4 February-and Royal Assent. I know that retrospective legislation is a very serious business and should be contemplated only where absolutely necessary. I assure your Lordships that this provision is necessary; without legal cover, banks would not have been able to maintain existing asset freezes for the past five days, and asset flight might already have happened at a cost and risk to our national security.
	The Bill is time-limited to expire on 31 December 2010. We believe that the end of the year is the right timetable, as it will allow time for more permanent asset-freezing legislation to be given full consideration both in Parliament and in pre-legislative scrutiny. I could not be confident that, given elections and recesses, this job of scrutiny could be safely dispatched and a full Bill could then be taken through both Houses before 31 July 2010. Today's Bill is unavoidably urgent, but we do not believe that we should be fast-tracking two asset-freezing Bills through Parliament in close succession.
	I want to respond to a number of points concerning human rights safeguards that were raised yesterday in debating the Bill in the other place, and which I expect noble Lords will also want to discuss today, both at Second Reading and in Committee. There are fundamental issues that are important to all Members of this House. Our intention is that all those issues be fully considered and debated when this House considers permanent asset-freezing legislation in the coming months. However, I understand that noble Lords will want some discussion of these issues today to be satisfied that the regime they are voting to extend in this Bill today until the end of the year is proportionate and fair.
	Before coming to some specific issues, I want to explain that our asset-freezing regime is tried, tested and fit for purpose. It was subject to rigorous analysis by the Financial Action Task Force in 2007 and was judged to be, in its words, "fully compliant" with international best practice-we are the first country, incidentally, to get this top mark-and we have improved it through experience. For example, as the Supreme Court itself pointed out, the Terrorism Order 2009 is an improvement on the 2006 order, with more safeguards and greater proportionality.
	One question that was raised yesterday in the other place, and which I see is also raised in an amendment we will discuss later, is whether "reasonable suspicion" is the right legal test. We believe strongly that it is. If we want the regime to be preventive rather than punitive, which we all do, freezing people's assets only when they are convicted is not the right approach. Such an approach is not very preventive as it may mean that freezes cannot be imposed for more than a year after someone has been detained, while they are still awaiting trial. Indeed, waiting to freeze assets until someone is convicted may simply appear punitive; an additional form of punishment on top of a prison sentence. The Financial Action Task Force is clear that reasonable suspicion is a proper legal basis for meeting UN asset-freezing obligations. As I mentioned earlier, we do not simply rely on the reasonable suspicion test. Designations must also be necessary for public protection, which acts as a safeguard against any arbitrary use of the power to make designations.
	A number of Members in the other place expressed concern that using reasonable suspicion as a test may leave people in a sort of limbo situation where they have their assets frozen without knowing the case against them, without being charged with a criminal offence and without any means of getting an asset freeze removed. I will explain why this perception is not accurate. First, it is not true that people do not know the case against them. When people are designated, we provide them with as much information as we can share about the reasons for their listing. Only relatively few cases involve closed source material that cannot be shared directly with the designated person. Of the 33 UK people currently designated under the terrorism orders, six were designated on the basis of closed information and 27 were designated on the basis of open material.
	Secondly, it is not true to say that people on an asset freeze list are never charged with a criminal offence. In fact, a clear majority also face action through the criminal justice system. Of the 33 people designated under the terrorism orders, 27 have been charged with a terrorist offence. Of these, 22 have been convicted; four are awaiting trial or retrial; one has recently had their charges dropped and we are urgently reviewing their listing.
	Finally, it is not true to say that people can never get off an asset freeze list. The Treasury has a track record of actively reviewing designations and revoking them when they no longer meet the legal test. Of the 51 UK designations made under the orders to date, 18 have been revoked following a Treasury review; for example, where criminal charges have been dropped or where an individual is no longer assessed to pose a significant threat. Under the Bill, the Treasury will continue to carry out such reviews on a yearly basis, or more frequently when there has been a change in a person's circumstances.
	A further question raised on several occasions yesterday in the other place was whether the right of individuals to challenge their designations in court under a judicial review procedure provided sufficient redress. The Government are of the view that court scrutiny should happen after freezing decisions have been taken and individuals have decided to challenge them. We do not believe that courts should be taking the decision to impose the freeze in the first place. These are decisions that the Executive can rightly take, with the safeguard, as I outlined earlier, that all decisions must be necessary for public protection and supported by proper evidence.
	We believe that judicial review is the right procedure for the courts to examine cases that are brought before them. Judicial review is not, as some might argue, a light touch that lets the Executive off the hook. On the contrary, as we have seen in control order cases that have come before the courts, a judicial review procedure closely scrutinises the Government's decision-making processes and the evidence used to support them.
	It might help if I explain in detail how the judicial review procedure works for control orders. There is an automatic review process by the High Court to determine whether the Secretary of State's decision to make a control order was flawed. In other words, the judge must agree: first, that there is reasonable suspicion that the individual is or has been involved in terrorism-related activity; and, secondly, that a control order is necessary to protect members of the public from a risk of terrorism. The judge must also satisfy himself that each obligation imposed by the order is necessary and compliant with the ECHR, including Article 5, which deals with the right to liberty, and Article 8, which deals with the right to respect for private and family life. The judge will further ensure that the individual's right to a fair hearing in accordance with Article 6 is protected.
	If any of these tests is not met, the judge can quash the order, quash one or more obligations imposed by the order or give directions for the revocation of the order or for the modification of the obligations that it imposes. The court may consider the case in open or closed session, depending on the nature and sensitivity of the information under consideration. Individuals are represented in open court by a lawyer of their choice. Special advocates are used to represent the interests of the individuals in closed sessions.
	Finally, I know that a number of noble Lords will be concerned about the human rights impacts of the asset-freezing regime and will have noted the comments of some of the Supreme Court judges referring to the regime as "draconian" and designated persons as "prisoners of the state". Again, these points were raised in the other place yesterday. I should stress that the Supreme Court did not make findings that the asset-freezing regime breached human rights. It quashed the orders because of the legal base. Given that the court did not make human rights findings, we should be careful not to take some individual comments in the judgment as representing definitive views of the court about the nature of the regime.
	Some of the Supreme Court Justices expressed clear views that the orders were not disproportionate. The noble and learned Lord, Lord Brown, for instance, said:
	"I am unimpressed by the alternative grounds on which the Order is challenged, those of certainty and proportionality. Primary legislation introducing this same asset-freezing regime could not have been declared incompatible on those grounds. It is only because the Order was plainly insufficiently mandated by the SCR 1373 that I would hold it invalid".
	The noble and learned Lord, Lord Mance, with whom the noble and learned Lord, Lord Phillips, agreed, said:
	"I agree with the Court of Appeal's reasoning and conclusion that the relevant provisions of articles 7 and 8 were and are sufficiently certain to be valid ... I am at present also unpersuaded that the content of the Orders could be challenged on grounds of lack of proportionality, although I need express no final view about this. Combating terrorism, and the freezing of funds or resources which can be used for terrorist purposes, are undoubtedly matters of first importance".
	We take great care to ensure that the regime is proportionate.
	As set out in the Written Statement that I laid before this House on Friday, central to this is our licensing regime. We make sure when we designate people that we immediately issue a legal aid licence so that people can receive legal aid, if eligible. We also immediately issue a licence to allow them to receive and use their state benefits without delay. We do not limit people only to basic expense. We impose licence conditions, but only conditions that are proportionate to ensuring that funds are not diverted to terrorism. As I announced on Friday, we no longer require spouses of designated persons to report to the Treasury on how they spend benefits money. That will help to minimise the impact that the regime has on spouses and families.
	In closing, in these times of severe threat to our national security, we cannot afford to fail to take the necessary steps to prevent terrorists raising and using funds for purposes of terrorism. Without primary legislation of the kind before the House today, we will leave gaps in our defences which could be exploited by people who intend serious harm to the British public.
	The Bill ensures that the proper safeguards we set out in the Terrorism Order 2009 will continue to apply. At the same time, the Bill will provide Parliament with the proper time needed to consider and debate the permanent legislation in full. I therefore commend the Bill to the House.

Lord Lloyd of Berwick: Before the noble Lord sits down, perhaps I may ask for information on one point which I do not entirely understand. He referred to £135,000 as having been frozen under the orders of 2001 and 2009, but am I not right in thinking that those orders have in fact been quashed? So at the moment, at any rate, they are quite safe. It is only the 2006 order that has been quashed, and that relates to £16,000 only, which has presumably now gone. Is that the right analysis?

Lord Myners: I believe that the noble and learned Lord is correct, but that we can no longer place dependants on the other orders in the light of the Supreme Court's decision. If, however, officials give me a more precise answer, I will of course make sure that I provide it to the House and to the noble and learned Lord in my closing speech.

Baroness Noakes: My Lords, I thank the Minister for introducing this Bill. Let me say at the outset that these Benches support and have consistently supported the Government in helping to ensure that terrorists do not threaten the security of the UK or, indeed, of other nations. We have supported a bewildering array of anti-terrorism measures in the past decade and we will support the Bill before us today. However, in lending our support, we reiterate our call for a review of the totality of anti-terrorism legislation. This patchwork of legislation, not just for asset freezing, lacks clarity, and it is time that the Government moved beyond a piecemeal and reactive approach. We are committed to reviewing and consolidating national security-related legislation and to ensuring its compatibility with fundamental rights and freedoms.
	Our support for anti-terrorism legislation is never unconditional. That legislation has to be proportionate, and inevitably there is a balance to be struck between the rights of individuals and the public interest, but Parliament is the right place for that balance to be determined. The Supreme Court decision handed down on 27 January made plain the impact on individuals affected by the various freezing orders covered by the Bill, and the Minister has quoted some of the words used in the Supreme Court: "draconian", "drastic", "burdensome", "oppressive" and "prisoners of the state". However, as the Supreme Court made clear, Parliament should have been involved in determining whether and how the rights of the individuals were to be protected under the orders. The Supreme Court was clear that it was for Parliament to determine.
	When the United Nations Act 1946 was passed, it was in the context of a very different world from today. All of the orders made under that Act prior to 2001-and indeed a good number of those made subsequently-deal with sanctions against countries rather than individuals. I rather doubt that the 1946 Act, with its Order in Council process, would get through your Lordships' House unamended today, possibly even if it were restricted only to sanctions against nation states.
	In 2001 however, the Government decided to use the 1946 Act for the anti-terrorist measures mandated by the UN Security Council. The Treasury has some form in using legislation in a way for which it was not initially intended. We all recall that the Treasury surprised many people, including the Icelandic nation, when it used the asset-freezing powers of the Anti-terrorism, Crime and Security Act 2001 to freeze the assets of certain Icelandic banks.
	The Treasury has never fully explained why it chose to use the 1946 Act rather than primary legislation which could have been processed through a fast-track procedure in 2001. The Written Ministerial Statement of 27 January, and the Minister today, referred to the Government acting,
	"in good faith based on their belief that section 1 of the United Nations Act was an appropriate legal vehicle".-[Official Report, Commons, 27/1/10; col. 54WS.]
	Did it never occur to the Government that they had taken too much power to the Executive, to the detriment of those who were targeted by the orders? Did they never stop to think that Parliament ought to have been involved in the decisions? Did they not recognise the rights and liberties of the individuals who might be affected? If they had done so, the only logical conclusion to have drawn would have been that the balance between the interests of national security and those of individuals were best decided by Parliament and not by the Executive alone.
	If it did not occur to the Government that they were acting inappropriately in 2001, did they not pause for thought when the Judicial Committee of the Privy Council, chaired by my noble friend Lord Newton of Braintree, highlighted in 2003 the human rights issues involved in asset freezing? Or perhaps when the Joint Committee on Human Rights issued its sixth report of the 2003-04 Session? Or even when New Zealand and Australia replaced their regulations with primary legislation? The Government have known since the High Court ruled against them in April 2008, after a legal challenge, that their use of the 1946 Act was vulnerable.
	It is unattractive when the Executive try to take maximum power for themselves and then are prepared to go right through the courts to defend it. I cannot help but think that it would have been more responsible for the Government to recognise the force of the arguments in the High Court judgment that have now been endorsed by the Supreme Court, and to have brought forward primary legislation in 2008.

Lord Elystan-Morgan: Would the noble Baroness kindly give way? I am most grateful. The point that she made about the decision of the High Court in April 2008 is perfectly valid. However, I am sure that she will accept that the Court of Appeal reversed the decision-I think unanimously-a few months later.

Baroness Noakes: From memory, it was not a unanimous decision: there was criticism of some aspects of it. However, I accept that the Court of Appeal ruled in favour of the Government. My point is that the Government were on notice that they were vulnerable, but they chose to battle on through the courts rather than put the legislation on a more secure basis by involving Parliament. It should have been clear to the Government that Parliament had not been properly involved in the early decisions, and that the proper way forward was to bring legislation that would involve Parliament in the construction of the way in which individuals' assets would be frozen. However, they stuck it out until the very end and lost in the Supreme Court. That made it inevitable that we would have emergency legislation. We are in this position because the Government failed to act.
	The Government first informed us nearly two weeks ago that they intended to take through the legislation, which was published in draft form last week, on an expedited basis. The Bill would replace the orders under the 1946 Act with a dedicated Bill. Dates had been provisionally agreed that would have allowed both Houses to consider the Bill on a rapid but acceptable timescale. The plan was for the Bill to start in the other place today and for it to have been completed in your Lordships' House, with Second Reading, Committee, Report and Third Reading taken over the first two weeks of March. However, once the Government heard that their application for a stay had been rejected by the Supreme Court, they abandoned that Bill and opted for the minimalist Bill before us today. They have dressed this up as the virtue of pre-legislative scrutiny; but they showed no interest whatever in extensive or pre-legislative scrutiny right up to the time that their stay application failed.
	There is also a puzzle. The Government have asset-freezing powers in the Anti-terrorism, Crime and Security Act 2001, which the noble and learned Lord, Lord Hope, the Deputy President of the Supreme Court, said could have been used for the cases covered by the appeals. I believe that that legislation has been used only once, in the case of the Icelandic banks to which I referred earlier. The Government have not properly explained why they do not use that legislation for terrorist asset freezing; in what ways their view differs from that of the noble and learned Lord, Lord Hope; or, indeed, why a simple amendment to that Act could not give them the legislative cover that they need.
	The Bill has a sunset date of 31 December 2010. It could have been managed perfectly well with a 31 March sunset. It would have been possible and, in our view, desirable if the longer Bill putting terrorist asset freezing onto a proper footing had stuck with the timetable that we had already agreed. We told the Government last week that we were ready and willing to do that in addition to dealing with this emergency Bill this week. The chairman of the Human Rights Committee said yesterday in another place that 31 March would have allowed his committee enough time to scrutinise the longer Bill. The Government are still running away from proper parliamentary scrutiny.
	We believe that it is about time there was a debate in Parliament about the balance between the rights of those who are the subject of asset freezing and the needs of national security. We need to debate whether there should be some involvement by the courts in the designation orders themselves, by way of review or confirmation. We should examine why terrorist asset-freezing orders are more draconian than asset freezing for money laundering or criminal purposes, for example under the Serious Organised Crime and Police Act 2005, where the courts have a greater involvement.
	We need to debate whether the appeal processes first set out in the Counter-Terrorism Act 2008 are appropriate. They are based solely on judicial review processes and remedies and so are heavily weighted in favour of the Executive. I disagree with the Minister's analysis of judicial review. It does not allow an examination of the merits of the case and it also does not allow, for example, for orders to be varied, which is important when dealing with licences for the use of financial resources. We need to debate the way in which the various offences are constructed and why some of them are restricted to situations where significant benefit is involved while others are not. We need to subject the information provisions to scrutiny and ensure that the privilege regarding self-incrimination is not damaged.
	We have a long list of more detailed points which can be taken forward only in the context of a longer Bill. We are denied the opportunity to deal with those points because the Government have chosen the minimalist emergency legislation. All the points that I have mentioned are relevant to the minimalist Bill but they cannot be debated given the structure of the Bill and the timetable to which we are working. I know that the noble Baroness, Lady Hamwee, has tabled amendments for our Committee stage this evening, but I do not think that this short Bill is the right place for them.
	Let me reiterate that we believe in a strong and effective regime which can minimise the threat posed by terrorism in whatever guise it appears. However, we are mindful of the need to accord those suspected of involvement in terrorism the sort of rights that a civilised and libertarian society accords its citizens. The Bill does not allow a proper consideration of those issues. We shall return to some of them when we reconvene later today for the Committee stage but we shall not debate them properly until there is a full Bill to scrutinise. I regret that the Government are denying Parliament that opportunity.

Lord Pannick: My Lords, the judgment of the Supreme Court established three principles which the House will wish to have well in mind during the course of this debate. First, the Supreme Court decided that the international obligations of this country under the UN resolution extend only to those persons who are involved in terrorism. Secondly, the Supreme Court explained that because the relevant orders purport to go much further and apply to those in respect of whom there are only reasonable grounds for suspecting their involvement in terrorism, the orders were not validly made under the United Nations Act 1946. Thirdly, the court emphasised the destructive effect of these orders on the lives of those affected and the consequent need for considerable care and attention in ensuring the legality of any order so made. Some of the language of the justices has already been quoted in this debate.
	The undoubted urgency of this matter has meant that there has not been an adequate opportunity for your Lordships to reflect on the important issues raised by this Bill. There has also been no time for your Lordships' Select Committee on the Constitution, of which I am a member, or for the Joint Committee on Human Rights to consider and to report on the major constitutional and human rights implications of this Bill.
	No doubt we have no choice but to accept this Bill. However, we should record and we should regret that we are in this difficult position because of the Government's failure to heed earlier warnings that they were acting unlawfully in relation to these measures to combat terrorism. This Government have a very poor record of ignoring advice that their measures relating to terrorism are unlawful-detention in Belmarsh, control orders, stop-and-search powers and now the freezing of assets. I declare an interest as counsel in some of the litigation in relation to these matters. If the Government were to listen more carefully and with, if I may say so, a little more humility to bodies such as the Joint Committee on Human Rights and the organisations, JUSTICE and Liberty, for example, the Government would not need to come before this House today and ask for help in clearing up the mess that they have created.
	I hope I am not the only noble Lord for whom the constitutional principles set out by the Supreme Court matter. I hope I am not the only noble Lord who is most reluctant to wave a magic wand over these measures to validate, even temporarily, what is otherwise constitutionally objectionable. It is ironic indeed that when the Supreme Court has found these orders to be invalid because of the absence of parliamentary debate and parliamentary approval we are now asked to negate that invalidity by a procedure which allows for the most limited debate in Parliament. Like the noble Baroness, Lady Noakes, I am concerned that the Government prefer orders rather than primary legislation precisely because they do not value debate on these important matters. We will need reluctantly to approve a temporary measure, but all its provisions must be scrutinised most carefully in Committee to ensure that they are necessary and proportionate.
	Noble Lords will not dispute the need to validate freezing orders against people who have been found to be involved in terrorism. Noble Lords will also accept the need to validate such orders against people who the Secretary of State believes, on reasonable grounds, to be involved in terrorism. As the Minister rightly said, of course freezing orders must be available against people who have not yet been convicted for terrorism. But the orders go much further: they impose restraints on people merely because there are reasonable grounds for suspecting that they are involved in terrorism. That is unacceptable, especially as the United Nations resolution imposes no such obligation.
	The noble and learned Lord, Lord Brown of Eaton-under-Heywood, in his judgment in the Supreme Court, said at paragraph 199:
	"To suspect something to be so is by no means to believe it to be so. It is to believe only that it may be so".
	The House should not be asked to fast-track legislation that will have a destructive effect on the lives of people without the Minister being able even to say that he believes on reasonable grounds that the persons concerned are involved in terrorism.
	Perhaps I may also ask the Minister about the retrospective effect of the Bill. He mentioned that Clause 2 has a retrospective effect, back to 4 February, to protect the interests of the banks. However, as I understand it, the Bill has no retrospective effect for the period before 4 February. That means, I assume, that someone whose funds were frozen last year and who asked the bank to release the funds on 27 January-the date when the Supreme Court handed down its substantive judgment-would have a good claim against the bank for damages. Will the Minister please clarify whether my understanding is correct, because I do not understand what is the point in distinguishing in this temporary Bill between what occurred on 3 February and what occurred on 4 February?
	I also suggest that 31 July 2010 would be a much more appropriate date for the termination of this legislation, even allowing for the intervention of a general election. The date of 31 December in Clause 1 gives a strong impression to your Lordships that the Government are content to rush through this Bill and then relax, with the pressure off, rather than, as should be the case, ensuring that the substantive measures receive full debate as soon as possible.
	Later today, the House will of course approve the Bill. But I ask noble Lords to remember the wise words of Mr Justice Frankfurter in the United States Supreme Court in 1950, that,
	"the safeguards of liberty have frequently been forged in controversies involving not very nice people"-
	or, in the context of this Bill, people who the Secretary of State has reasonable grounds for suspecting to be not very nice.

Lord Lloyd of Berwick: The noble Lord is obviously more familiar with the judgment than I am, but am I right in thinking that the noble and learned Lord, Lord Brown, was the only one of their Lordships to take the point about the difference between suspecting and believing? I think he was alone.

Lord Pannick: Other justices took the same point. Indeed, it was fundamental to the judgment because the United Nations resolution did not allow for action against those who were merely suspected of being involved in terrorism. Therefore, the United Nations Act was not a lawful instrument for the making of the orders.

Lord Mackay of Clashfern: My Lords, we are faced with a difficult situation, as the noble Lords, Lord Pannick and Lord Myners, said. I would like to express my appreciation of the way in which the noble Lord, Lord Myners, introduced the Bill, and I appreciate the difficult situation in which the Government find themselves. There is no doubt that statutory instruments are extremely useful if you wish to do something quickly. The speed with which the legislation was introduced after the Security Council resolutions were passed is commendable. The problem with legislation that proceeds in that way is that it is by no means as secure as primary legislation. Indeed, primary legislation in our country is so secure that no court can overturn it, except possibly the court in Luxembourg in cases where it is supposed to contravene European law.
	The important difference is between primary legislation and secondary legislation. As the noble Lord, Lord Pannick, said-I shall not repeat what he said on this point-the Supreme Court decided unanimously that the two orders that it quashed went beyond the empowerment that the United Nations Act 1946 gave for the purpose of implementing United Nations Security Council resolutions because the reasonable suspicion basis was not included in that resolution.
	That has another effect. So far as I know, the United Nations has not found it necessary to pass resolutions requiring member states to introduce legislation dealing with people against whom there is only reasonable suspicion, so these orders were without the authority of a United Nations Security Council resolution. That does not mean that, after a broad and careful assessment of the situation, the Government might not think that, because of our special circumstances, it was necessary to have legislation that went beyond the United Nations resolutions. I think I am right in saying that New Zealand and Australia took the view that that was necessary and passed primary legislation. We did not do that and have stayed with secondary legislation that enables one to take action very quickly but in which, in this case, Parliament was not involved because there was no need for a negative or affirmation resolution procedure.
	The difficulty with that is that the legislation is nothing like as secure as primary legislation, and in due course the Supreme Court, having examined this with considerable care, came to the conclusion that these orders were beyond the powers conferred by the Act of 1946 and therefore should be quashed. That has the effect of making them null and void from the time they were originally passed. They have no authority whatsoever.
	This was a situation of very grave difficulty for the Government if, as I assume, they believed that there was a serious risk to this country arising from people against whom they had no more than a reasonable suspicion. On that basis, it was necessary to take immediate action. My original thought, when I read of this occurrence, was that we have a range of anti-terrorism legislation which has been passed by Parliament over a number of years. It is quite a patchwork. Therefore, I wondered why it would not be possible to resort to one or other of these pieces of legislation to deal with this sudden difficulty. The answer to that is contained in the speech that the Exchequer Secretary made to the other place yesterday. She said:
	"Let me deal with a point raised by the hon. Member for Twickenham"-
	that is Dr Cable of the Liberal Democrats-
	"Why do we not use other existing counter-terrorism legislation? It has been suggested that counter-terrorism legislation is already in place, and that we should use those powers rather than introducing asset freezing. We have a comprehensive framework to counter financing of terrorism, but none of the other legislation replicates the effects of the asset-freezing regime under the terrorism orders in its preventive nature and in its ability to restrict suspected terrorists' access to the financial system. Furthermore, no other legislation contains such a comprehensive range of prohibitions on third parties' making funds available to terrorist suspects, such prohibitions being essential to preventing terrorists from circumventing the restrictions and accessing funds."-[Official Report, Commons, 8/2/10; cols. 697-98.]
	That immediately shows that there was a huge hole in the primary legislation system for dealing with terrorism on the basis of the nature of the threats which the Government believe to exist.
	We are going to deal with this today on the basis of this Bill, but I would venture to humbly suggest to the Government, and to any other Government that may have responsibility in the future, that it is vital that the counterterrorism legislation, which is important, should be primary legislation, even if one has to take secondary legislation in order to get quick action. It should be followed up by primary legislation.
	Secondly, it is amazing, looking at the patchwork of counterterrorism legislation that we have had, that it was not appreciated that this risk existed. I can understand that we are all fallible-at least, that is the general view-and that this kind of loophole or difficulty may be overlooked. However, it is extremely important, in the light of what has happened, that the whole pattern of counterterrorism legislation should be examined to see that, in all its aspects, it is reasonably secure and fit for purpose in what is a fundamental protection for our citizens.
	The Bill is temporary-there is argument about how temporary it should be-and the Government have indicated that they will replace it with primary legislation. I venture to think that that would be a superb opportunity for considering the whole range of anti-terrorism legislation, which has been introduced piecemeal, so that we have a comprehensive system that will work in all circumstances, so far as we can see. As my noble friend Lord King has noted, there is a rather difficult grey area between terrorism and serious crime, and the provisions for seizing assets from serious crime are extremely complicated, as I think anyone who has tried to operate them will agree. I know that the Government have other work to do, but this may be a good opportunity to consider whether these two systems could profitably be linked together.

Baroness Hamwee: My Lords, I start on a positive note by thanking the Government for keeping these Benches informed at the end of last week of what they were proposing-not, of course, that we on these Benches would have started from here-and for the command paper with the draft full Bill, which has provided some material for amendments, which we will discuss later. I should say to the noble Baroness, Lady Noakes, that some of them are relevant for now.
	Like the noble and learned Lord, Lord Mackay, I very much appreciated the Minister's introduction, although I would have appreciated it even more if I had been able to take it away and read it before responding to it. However, here end the compliments.
	I put on record our thanks to JUSTICE and Liberty for their briefings. Second-hand compliments are often the most credible. One of my colleagues who questioned me about the Bill yesterday had read the briefing material as soon as it arrived, and the organisations should take that as a compliment.
	Nothing that is said from these Benches should be taken as our opposing proper measures to stop funding getting to terrorist groups or as our resisting our international obligations. However, we detect the Government's air of panic to which other noble Lords have referred. We, too, asked: why such a rush? The judgment was made at the end of last month, and a supplementary judgment was made when the Supreme Court refused to grant a stay on 4 February, but the case did not start this year. I accept that the High Court order to quash the relevant orders was superseded by the Court of Appeal, but it was made in April 2008, so the Government were clearly on notice, as the noble Baroness put it, of the issue, and, as the noble Lord, Lord Pannick, said, they have failed to heed warnings for a considerable period.
	In the Supreme Court judgment, the noble and learned Lord, Lord Mance, expressed,
	"concern about the development and continuation over the years of a patchwork"-
	a word used by noble Lords this afternoon-
	"of over-lapping anti-terrorism measures, some receiving Parliamentary scrutiny, others simply the result of executive action".
	As noble Lords have said, we have had a great deal of terrorism legislation and criminal, serious organised crime legislation. Speaking as a lay person in this, I find it difficult to believe that terrorism is not serious organised crime.
	If the Acts of 2000 and 2001, which were used against the Icelandic banks, and 2008 did not cover the issue-the Government take that view but there is a dispute about this-why did they not make them? Even if the Government thought that Orders in Council were adequate, such important provisions, with such an impact, should have been brought into primary legislation. I follow the noble and learned Lord, although not as eloquently or no doubt as technically correct, in saying that the answer is not that an Order in Council is the usual way to go. Later today, there will be amendments from these Benches to seek to apply some existing primary legislation for the interim period.
	As has been said, only small sums are currently frozen. Although I accept that it is not necessarily expensive to carry out an act of terrorism, the issue of proportionality obviously arises. It is right to protect the banks which are caught in the middle. But if an individual who is subject to freezing took proceedings to get his money back, it would not be dealt with overnight. That would, in effect, allow a little more time for the Government to take this in a rather more measured way. In any event-I think that I read this in the same way as the noble Lord, Lord Pannick-the rights of individuals against the Treasury are preserved. Taking legislation a little more slowly would simply extend by a small amount the period in respect of which an individual might claim. Having made that point, I welcome the fact that those rights are preserved.
	We are unpersuaded of the need for emergency-or, as it is now perhaps a little euphemistically known, fast-track-legislation. But the House of Commons passed this Bill and it is clear that by tomorrow morning we will have a new Act of Parliament; so I do not want to spend much more time on this aspect.
	The Government have been hauled over the coals by the Supreme Court for bypassing Parliament and now the use of emergency legislation is sought to overturn that judgment. Much as we might object to this, our task is to make the legislation more palatable. I hope that our amendments will help to achieve that end.
	I said that it was right to protect the banks which have been caught in the middle. But that is not as important as protecting the citizens in the face of disproportionate interference with their human rights in ways not required by the UN resolutions. The terms "remorseless", "devastating", "draconian" and "paralysing" are used to describe the conditions imposed on those who are merely suspected-these are the Supreme Court's adjectives and have been used by other noble Lords today. No evidence is required and there is no possibility of judicial challenge.
	It is important that permanent legislation is scrutinised thoroughly. We would support pre-legislative scrutiny perhaps by a Joint Committee of the two Houses or some other bespoke procedure. There is no reason why one should not design a procedure for this unusual circumstance. But it is far from clear that, even with a general election intervening, it is necessary to wait for as long as the end of this year. It certainly is clear that the asset-freezing regime to which an individual is made subject should itself be subject to supervision by the courts. Such orders should not just be made by the Executive. To quote the noble and learned Lord, Lord Mance, again, he said that the wording of UN resolution 1373,
	"does not suggest that the Security Council had in mind 'reasonable suspicion' as a sufficient basis for an indefinite freeze".
	The 2001 Act has the test of "reasonable belief". However, the Government come nowhere near evidence in the Bill, although I heard what the Minister had to say. Furthermore, promoting a Bill with no judicial oversight when a person is designated and no appeal-in other words, no judicial oversight at the beginning and no appeal at the end-and no appeal in respect of the licence terms that might apply is something that we find offensive; that would not be the wrong word. The Minister referred to judicial review and said, I think, that it was not a light touch. I believe that it is the wrong touch for this situation. It is about process and as described it accepts the premise on which the original order was made. That of course is one of the matters about which we complain.
	It is of great importance that the orders are themselves proportionate, but their impact has been described as "very burdensome" on all members of the designated person's family. The impact on normal family life is remorseless and can be devastating. Noble Lords have heard of some of the restrictions. The wife of one respondent could not even receive welfare benefits until the regime was relaxed. It was what amounted to an invasion of privacy of a wife who was not a listed person. Solicitors have reported to the Supreme Court the break-up of the marriages of some of the individuals concerned. Although the Minister covered some of this in his opening speech, I want to ask particularly about what is routinely licensed. What is the approach and how are the needs of the whole family assessed? Indeed, how are their representations heard? Incorporating some sort of minimal level would be right, and I would say too that it goes against every principle that the actions of providing money to fund a challenge to an order or legally to represent a designated person should be an offence is itself offensive. The noble Lord mentioned legal aid. I am a little perplexed because it is difficult to imagine that someone subject to one of these orders would have the funds not to require legal aid. As we have seen in the draft longer Bill, the Government consider that periodic reports from the Treasury and an independent review of the process would be proper, so why not import those here?
	This is an emergency largely of the Government's own making. The Minister referred to human rights legislation and has made a statement under the Human Rights Act that the Bill complies with the Act. Can he confirm that it complies only because the Human Rights Act and the European Convention on Human Rights do not apply? The UN charter trumps them both. As I understand it, the Supreme Court thought that as the Al-Jedda case is still continuing, that precluded it from considering the human rights position. The Minister quoted the noble and learned Lord, Lord Mance, who said that he was not taking a final view.
	It is with the greatest reluctance that we see before us legislation that amounts to control orders by another name. Liberal Democrats in the Commons made it clear what they thought by voting against Clause 1- the guts of the Bill. We will do our best later today to ensure that the legislation that emerges is appropriate and not excessive. I can certainly assure the noble Lord, Lord Pannick, that no magic wand will be waved from these Benches.

The Earl of Onslow: My Lords, I apologise for not being here for the first part of the debate, but I was taking part in important discussions in the Joint Committee on Human Rights appertaining to another issue, and I had to be there. As has just been mentioned by the noble Baroness, Lady Hamwee, the noble Lord, Lord Myners, states on the front of the Bill that nothing in the Bill is incompatible with the European Convention on Human Rights. How do the Government know that? The noble and learned Lord, Lord Hope of Craighead, suggested that the JCHR could have looked it, but we have not looked at it. For the Government to say that the legislation is compatible with the ECHR without even subjecting it to parliamentary scrutiny is, I regret to say, fairly disgraceful. Obviously the Bill has got to go through, but with my human rights hat on, I must raise the strongest objection to how it is being done. This rush and panic reflect the Government's track record of totally disregarding the liberties of the subject, about which some of us feel very strongly.

Lord Myners: My Lords, this has been a stimulating debate, one that I approached with considerable trepidation given the contribution we could expect from Members of the House with great experience in matters of the law.
	As the whole House recognises, the threat to the UK today from international terrorism is very real and significant. Terrorists need financing to be able to carry out attacks, the costs of which, as we have seen, do not have to be great. Terrorists also need financing to maintain their infrastructure; for training, equipment and recruitment, and to promote their ideology. The capabilities of terrorist groups are severely constrained without access to funds.
	The asset-freezing regime, implemented in good faith under Orders in Council, has proved over the years to be a valuable tool for disrupting and preventing terrorist financing. The Supreme Court ruled that the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006, implemented in good faith, were beyond the scope of the power provided by Section 1 of the United Nations Act 1946 and quashed both orders. This had effect from 4 February.
	National security and public protection continue to be an absolute priority for the Government. Our aim is to prevent a gap in the asset-freezing regime and ensure that suspected terrorist funds cannot be diverted and used for terrorist purposes, and that suspected terrorists do not get free access to the UK's financial system.
	That is why this legislation is being moved today. We considered it necessary to the UK's national security to act swiftly to restore the asset freezing on a temporary basis under primary legislation, while we introduce permanent legislation with time for Parliament to fully scrutinise our proposals in great detail.
	I welcome the many points made by Members of the House. I will deal first with the points raised by the noble Baroness, Lady Noakes. The noble Baroness kindly offered support for the intention of the legislation, and we welcome and greatly appreciate that. At the same time, the noble Baroness quite correctly lost no opportunity to point out what she regarded as the Government's failings, which led us to have to introduce this legislation on a fast-track basis. No doubt there were warnings which could have led many to believe that primary legislation should have been introduced from 2001. The noble Baroness referred to the work produced by the noble Lord, Lord Newton, in 2003 in that respect; and also, as the noble and learned Lord, Lord Mackay of Clashfern, referred to, the actions taken in primary legislation in New Zealand and Australia.
	However, I remind your Lordships' House that the Government were acting in good faith and under advice that it was correct and proper to rely on Section 1 of the United Nations Act 1946. We cannot rush to Parliament every time a piece of legislation goes through some form of court challenge, certainly not in a situation where the Court of Appeal found in favour of the line that the Government had taken. However, the judgment from the Supreme Court required us to take the necessary action to protect the country and our people from the risk of terrorism facilitated by the use of financial assets and access to the financial system, while at the same time putting in place detailed legislation that can be subject to intensive scrutiny as it makes it way through the House.
	The noble Baroness is correct in observing that the decision of the Supreme Court to reject a stay in respect of its decision led us to require urgent action. The Supreme Court in its judgment directs us towards the need for fairer scrutiny, which is precisely what we are going to achieve by the process of putting forward two pieces of primary legislation-one to be adopted through the fast-track mechanism and the other through the very detailed scrutiny that this House and others will apply to the legislation, as we wrestle with reconciling the need to preserve security against the risk of terrorism while not encroaching unreasonably or disproportionately on individual freedom and rights, which we regard as of the highest possible importance. The noble Baroness in her various questions demonstrated why we need a very serious debate and scrutiny of the permanent legislation, which is precisely what we plan to ensure.
	The noble Lord, Lord Pannick, referred to the undoubted urgency to validate orders and asked why the Joint Committee on Human Rights and the Constitution Committee had been circumvented. The House will be aware that the answer is simply the lack of time. The Bill was introduced only on Friday, and the Joint Committee on Human Rights does not meet until tomorrow, and the same applies to the Constitution Committee. Both committees will have a very full role to play in scrutinising our permanent Bill, and we very much welcome that.
	The noble Baroness asked why we were not using the Anti-terrorism, Crime and Security Act 2001. The answer was provided largely from her own Benches by the intervention from the noble and learned Lord, Lord Mackay of Clashfern, in referring to the answer given in the other place yesterday by the Exchequer Secretary to Dr Cable. I might respond also to another point that the noble and learned Lord, Lord Mackay, made, relating to what he described as the patchwork of legislation. There is much to commend his observation that we should at an appropriate moment review the myriad pieces of legislation which deal with terrorism-to go back to the earlier intervention in my opening speech from the noble Lord, Lord King-to satisfy ourselves that the interface with other forms of legislation, particularly those relating to serious organised crime, is looked at in its totality to ensure that they are comprehensive and complete and that there are no inconsistencies or gaps. I have had the opportunity already to discuss this matter with my noble and learned friend the Attorney-General. It is a matter on which we will no doubt reflect-but we can rest assured without any doubt that the permanent legislation that we propose to follow this temporary Bill will receive very close scrutiny.
	The noble Baroness asked why we did not simply amend the Anti-terrorism, Crime and Security Act 2001. The Act covers a wide range of threats but is primarily aimed at countering threats from overseas and is framed appropriately. Amending it to allow for a meaningful terrorist asset-freezing regime that could be used to tackle threats within the UK would substantially change the nature of the Act, and we judge that this would not be an efficient way of addressing our particular concerns.
	I will go back to answer some more points made by the noble Lord, Lord Pannick. He expressed concern about the speed with which the Bill is being rushed through. I fully sympathise with his comments, and I think everybody on the government Benches and elsewhere in the House would rather we never had to use fast-track processes. However, the House also recognises that this is not necessarily a case, as the noble Baroness, Lady Hamwee, suggested, of a hint of panic; rather we are acting expeditiously and with appropriate urgency in the light of developments. We are not, of course, asking noble Lords to accept permanent asset-freezing legislation on such a fast-track basis. This Bill simply restores the existing regime for a temporary period to provide time for Parliament to consider permanent legislation more fully.
	Concern was also raised about our use of reasonable suspicion tests, and whether this exceeds our international obligations under United Nations Security Council Resolution 1373. I accept that UNSCR 1373 does not spell out precisely that action should be taken on the basis of reasonable suspicion. However, it is clearly intended to be preventive, and the international Financial Action Task Force has made it clear that, in its reasonable view, suspicion is a proper standard for implementing UNSCR 1373. I suggest to your Lordships' House that this is also an area where one operates within the framework of UN thinking but according to the particular circumstances as they are perceived to apply in one's own territory. I am afraid we know from very painful and tragic experience that the United Kingdom is a country in which the threat of terrorism is particularly pronounced, as indicated by my right honourable friend's decision recently to raise the security level. That ability to form a judgment as to the particular circumstances that will apply to our situation in this country, within the framework of 1373, is a reasonable way of proceeding.
	The noble Lord, Lord Pannick, also said that he was a little puzzled as to why Clause 2 gives retrospection to the banks only back to 4 February, and raised the question of what would happen if banks were to be sued for having maintained frozen accounts on 27 January, after the first Supreme Court judgment. We believe that retrospection should be used only where absolutely necessary, especially in a fast-track Bill. The reason we do not provide banks with retrospective cover predating 4 February in this Bill is that the Supreme Court judgment did not take effect until 4 February. Prior to that date, the banks were therefore in a position where they could reasonably argue that they properly thought they had a valid legal base to freeze terrorist assets. The noble Lord also expressed concerns about why we-

Lord Wallace of Tankerness: I hear what the Minister says on retrospection. Am I right in thinking, as the noble and learned Lord, Lord Mackay, indicated, that as a result of the Supreme Court decision, these orders have been null ab initio-from the very beginning? Therefore, previously, if a person failed to comply with a prohibition or obligation-prior to 27 January, for example-they might have been guilty of a crime. However, is the Minister saying that no crime will have been committed if a person failed to comply with a prohibition or obligation under these orders prior to 4 February, or even 27 January?

Lord Myners: I thank the noble Lord, Lord Wallace, for his intervention. I will no doubt reflect on that question while I complete my answers to the noble Lord, Lord Pannick. With assistance, I might provide him with the accurate and precise answer that his question justifies, and which I know that he would expect. As I think I said, we abhor retrospection-particularly in a fast-track Bill-and would only seek to use it where we believed that the arguments for so doing were compelling.
	The noble Lord, Lord Pannick, also raised the issue of the length of the sunset clause. The noble Baroness, Lady Hamwee, also mentioned that, and preferences were expressed for an earlier date. That will no doubt receive our attention during the Committee stage, if noble Lords so wish. We believe that 31 December is the right deadline to allow sufficient time for pre-legislative and parliamentary scrutiny. We also believe that our existing regime is tried, tested and fit for purpose, that it has appropriate human rights safeguards already in place, and that it can reasonably continue in operation until the end of the year and until we are able to introduce permanent legislation.
	As I am sure the noble Lord, Lord Pannick, would appreciate, 31 December is the absolute deadline. We will seek to bring this legislation forward and to have it debated by the House-and passed into legislation, if that is the wish of Parliament-well before 31 December. As must already be clear from this excellent Second Reading debate, there are significant issues that will require debate when we come to the substantive measure.

Lord Pannick: I am very grateful for that response, but can the Minister give us any indication of when proceedings will commence on the substantive Bill either in this House or in the other place? Does he have a date for the Second Reading?

Lord Myners: I do not have a date for Second Reading now, but I will certainly use my good offices to encourage that it is brought forward as soon as possible and as soon as it is compatible with good pre-legislative scrutiny. As the details of the Bill are already available, that scrutiny process has already commenced within an informal structure. Having reflected carefully on the question from the noble Lord, Lord Wallace, I can now advise him and the House that the orders are void. There are therefore no offences to prosecute; and, in any event, no prosecutions have been brought. I trust that that answers his question.

Lord King of Bridgwater: I thought that there was an old convention in this House that nobody should seek to anticipate the Queen's Speech. With respect to the Minister's response to the noble Lord, Lord Pannick, he seemed to be anticipating somebody else's Queen's Speech.

Lord Myners: The parliamentary experience of the noble Lord, Lord King, once again shines forth for the benefit of the whole House, and my own inexperience is visible to all. However, I think that I said words to the effect of, "if it were left to me" or, "I would use my own efforts". Far be it for someone as humble as me to anticipate the content of the Queen's Speech. I am grateful to the noble Lord for correcting me if I seemed presumptive in that respect.
	The noble Baroness, Lady Hamwee, made a very thoughtful contribution. I am sure that we will see much more of the logic behind her arguments displayed in Committee. In my opening comments I endeavoured to address some of the issues that will be raised by the amendments, but no doubt she will reflect on whether I have provided an adequate response or whether she still wishes those amendments to be placed before the Committee. I heard what she said about judicial review but I emphasise that it is not a light touch. It is a serious challenge and we should not disregard its powerful protection against abuse of privilege by the Executive.
	The noble Baroness, Lady Hamwee, asked about the basis of individual need. The Treasury carefully evaluates, and it has certainly sought to ensure, that its understanding of the needs of individuals is properly taken into consideration in the permitted licensing arrangements.
	I go back to the question raised by the noble and learned Lord, Lord Lloyd of Berwick, in respect of the amounts of money frozen. The 2006 order was quashed from 4 February. The 2001 and 2009 orders are still in force but are at risk of being quashed on the same grounds as the 2006 order. As regards frozen funds, all £150,000 remains frozen; £135,000 under the 2001 and 2009 orders, because they remain in force, and £16,500 under the 2006 order because we are giving the banks retrospective legal cover in this Bill.
	The noble Baroness, Lady Hamwee, also asked about a Section 19 statement based on the ECHR not applying. I advise her that we do not rely on the al-Jedda judgment. As regards Section 19 certification, we believe that the Bill is fully compliant with human rights requirements. I re-emphasise that I absolutely agree with the noble and learned Lord, Lord Mackay of Clashfern, about the importance of primary legislation. With hindsight, we wish that we had not relied on the powers in the United Nations Act 1946, but we are now somewhat belatedly seeking to rectify that with primary legislation.
	I think that I have covered most of the points raised. I must emphasise again that these are times of severe threat to our national security. We cannot afford to fail to take the necessary steps to prevent terrorists raising and using funds for terrorist purposes. Without the primary legislation before this House, we would leave gaps in our defences which people who intend serious harm to the British public would be able to exploit. At the same time, the Bill will provide Parliament with the time needed to consider and debate the permanent legislation in full. I therefore commend the Bill to the House.
	Bill read a second time and committed to a Committee of the Whole House.

Equality Bill

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	2nd Report from the Delegated Powers Committee
	3rd Report from the Delegated Powers Committee

Committee (6th Day)

Schedule 18 : Public sector equality duty: exceptions
	Amendment 114ZA
	 Moved by Baroness Morris of Bolton
	114ZA: Schedule 18, page 196, line 38, at end insert-
	"Exception to the public sector equality duty for small organisations
	Section 148 does not apply to-
	(a) a public authority specified in Schedule 19 that has fewer than 250 employees; or
	(b) a person who is not a public authority, but who exercises public functions and who has fewer than 250 employees."

Baroness Morris of Bolton: We tabled this probing amendment to ask the Government for reassurance about the operation of the public sector equality duty in relation to small organisations. Our amendment would provide an exception to the public sector equality duty, which would mean that any public authority, or a non-public authority that had been subcontracted to carry out functions of behalf of a public authority, should not be subject to the public sector equality duty if it employed fewer than 250 people.
	Research carried out by the Government to analyse the functions of the public sector equality duty and its impact was carried out predominantly on large organisations. Research to support extending the duty to other protected characteristics was based on research by Schneider-Ross Ltd. Most of the respondents in that case were large organisations. Some 30 per cent of the 174 organisations that replied to the survey employed between 1,000 and 4,999 people. Only 2 per cent employed fewer than 150 people. Has any further or alternative research been undertaken that concentrates more fully on small businesses?
	Concerns have been expressed to us that the public sector equality duty may be too onerous on businesses with fewer than 250 employees and that no information has been provided to suggest otherwise. Without any such reassuring information, it is perhaps premature to saddle smaller businesses with this burden until further research has been undertaken. This is a particularly pertinent question because, if the organisations subject to gender pay gap reporting are only those with more than 250 employees, might that not make sense in this case as well?
	A second concern is the potential lack of clarity in this area. We have been informed that Section 6(3) of the Human Rights Act 1998 states that a person may be defined as a public authority for exercising public functions. Would that mean, therefore, that a single person could be classed as having to abide by the public sector equality duty? Certain groups are worried because, as the Bill stands, it is unclear exactly to whom the public sector equality duty would apply.
	I have another question about smaller organisations that have had public functions outsourced to them. We covered most of this in a debate on a previous day and I will not go over those arguments. However, will the Minister confirm that if public functions are outsourced to a small charity-for example, one based on religious principles-the employment exceptions in paragraph 3 of Schedule 9 would still apply? In other words, will the charity continue to function under the terms of its foundation charter even though it would be performing a service on behalf of a secular public authority? Will the Minister clarify where the terms of a charity's foundation charter would apply and where they would not? If a public sector authority has outsourced some of its functions, in terms of those functions, will the public sector authority duty or the charity's foundation charter have pre-eminence?
	Finally, there is a question to be asked about organisations where jobs cannot be neatly segregated into those that would be tied into the public sector equality duty and those that would come under the private functions of a small organisation. For example, if a small care home operates under a Christian ethos, would that care home have a right to demand that staff were of the same religion? Moreover, if the care home also had some of the public care provision outsourced to it, under the terms of the public sector equality duty would it be able to ask for all staff to be of the same religion? I ask this because in such organisations it would not be possible to separate the roles into those which clearly came under the new equality duty, and those which remained under the small, private organisation. I see the Minister looking confused, and we are confused, but these are genuine concerns which have been raised with us, so I look forward to her response and hope she can shed some light in this area. I beg to move.

Lord Lester of Herne Hill: My Lords, this amendment, I am sorry to have to say, is regressive. It would exempt from Clause 148 any public authority with fewer than 250 employees.
	The Race Relations (Amendment) Act 2000, made in the wake of the recommendations of the Stephen Lawrence inquiry, introduced general statutory duties on scheduled public authorities which apply irrespective of the number of employees within its workforce. That is in respect of race. So did the Disability Discrimination Act 2005, supported by the Conservative Party.
	The Equality Act 2006 introduced similar public sector duties as regards sex discrimination which apply irrespective of the size of the public authority. The fair employment amendment Act of 1989, introduced by the Thatcher Administration to combat religious discrimination in the workplace, contained no such exception for public authorities with fewer than 250 employees. That is why the amendment is regressive. It is going back on the whole of that-race, religion, with regard to Northern Ireland here, with regard to gender, with regard to disability.
	We know of no evidence to support the amendment, nor do we understand why Her Majesty's Official Opposition should seek to weaken the scope of the public sector duty and the protection it gives to vulnerable minorities, including women, ethnic minorities, disabled people, religious minorities, gays and lesbians and the elderly, and we are opposed to it.

Baroness Greengross: Could I add my voice in opposing this amendment, and to agree with the noble Lord, Lord Lester? For example, whether a care home is under a religious foundation's auspices or not, it would be totally unrealistic to restrict those staff who actually do the caring to people of a particular faith, race or anything else, because they just would not work any more. It would be totally contrary to the aims of the Equality Bill.

The Archbishop of York: I fail to understand why the figure 250 has been picked. What matters is that people are not discriminated against either overtly or covertly and it does not matter whether the employees are five, 20, 100 or 1,000. Discrimination is discrimination, so I am surprised by the number. It may sound interesting, but mathematical calculations in a Bill such as this are never helpful. I do not understand why the figure has been asserted, and if, as the provision says, a public authority has a public duty, I do not understand why mathematics is beginning to come into it. Maybe I need to go back to primary school and then I will know that 250 is the level at which it is impossible to discriminate.

The Earl of Erroll: My Lords, I would like to interject briefly, as this issue has been worrying me a lot because I knew it was buried somewhere in the Bill. If I have understood the amendment correctly, it is about procurement and where it is in the supply chain. Already small and medium-sized businesses have a huge problem in getting business and contracts from government bodies. There are a lot of barriers in their way, and a lot of contractual obstacles are put in their path. SMEs employ about half the non-public sector workforce in this country. They are very large employers. Most are tiny companies employing five people or fewer, but some are larger companies. Innovation and growth in the economy come from the SME sector: they do not come from large companies, which tend to rationalise and downsize. Therefore, future pensions will be paid by these companies. In some areas, the local authority is almost the only employer. Therefore, there is a huge problem if people cannot do business with the local authority.
	I have seen one of these forms. It was sent to my wife, who employs only three or four people, in order that a small sum could be procured from her. It is impossible. There are questions like, "Can we see your special diversity policy?" and "Can you prove that X number of your workforce are this, that and the other?". Small companies cannot handle it. Therefore it is very sensible that there should be an exemption at some level-although I do not know what the figure should be-to allow government authorities to procure from small businesses. Because this applies down the supply chain, it may not apply to the first contractor, which may be a large organisation. However, when that organisation wants to contract further down the supply chain, the same thing will apply. The Government should show mercy to small companies, because the burden of bureaucracy is already enormous on them. This could be the straw that breaks the camel's back.

Baroness Howe of Idlicote: My Lords, I will say briefly that I, too, strongly agree with the noble Lord, Lord Lester, and with my noble friend. If I am picking up the vibes correctly, the Minister may be able to answer the query. It may be thought that small charitable bodies that might be asked to undertake work via a public authority would run into a problem because of this. From reading the Bill, I cannot see that. However, I will leave it to those who have more detailed knowledge. I am not in favour of this amendment.

Baroness Turner of Camden: My Lords, I will say briefly from these Benches that I strongly support what the noble Lord, Lord Lester, said in opposition to the amendment. Many people in this country are employed in small companies, as has already been indicated. The Bill is about individual rights as much as anything. If an amendment of this kind, with this sort of arrangement, were to be on the statute book, a large number of people would not have the benefit of employment rights of any kind. That would be totally unacceptable. I understand that in some instances it may be felt that very small companies may have problems, but one cannot have a situation in which 250 people-quite a high number-do not have access to the employment rights that other people have.

Lord Lester of Herne Hill: Perhaps I may respectfully correct one matter. This does not limit the scope of the non-discrimination provision, from which there are no small-employer exemptions, thank goodness. It limits the scope of the public sector duty, which is very serious for reasons that are clear. It would not be fair to the Opposition to say that they are seeking to emasculate individual discrimination provisions. They are seeking to weaken the public sector duty.

Baroness Royall of Blaisdon: My Lords, Amendment 114ZA, tabled by the noble Baronesses, Lady Warsi and Lady Morris of Bolton, would exclude from the equality duty public authorities with fewer than 250 employees, or organisations discharging public functions but not listed in Schedule 19 that have fewer than 250 employees.
	Despite the progress that we have made, inequality persists in our society. The equality duty is an innovative approach to tackling discrimination. It requires public authorities to show leadership in proactively rooting out entrenched systems of discrimination and in promoting equality of opportunity. The roles of the public sector and of the bodies that provide public services are central to our equality goals, as public services are used by all, with many of the most vulnerable citizens dependent on them.
	The noble Earl, Lord Erroll, probably wished to speak to Amendment 115B, which concerns procurement. The noble Baroness, Lady Morris, asked about the impact on SMEs and what further research had been done. I do not know, but I will come back to her in writing.
	The equality duty requires public bodies and other organisations which provide public services to have due regard to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations. It is difficult to understand why the size of an organisation should matter in considering the need to eliminate discrimination and promote equality. I think I am at one with the most reverend Primate on this. A number of small organisations provide services that could impact the lives of many in the community. For instance, at times, some of the health service bodies will have fewer than 50 employees but the service that they provide could have an impact on hundreds of people in the area. The same could be said for many schools.
	I understand that in the current fiscal climate some people think that compliance with the new integrated equality duty could lead to extra administrative burdens and bureaucracy. I do not think that is the case because, as the noble Lord, Lord Lester, informed us, at the moment we have three different duties, each with different requirements and reporting timescales. Bringing them together into one duty should decrease bureaucracy, and our emphasis on specific duties on proportionality-outcomes rather than processes-should lead to less form-filling and increased results.
	The exclusion of public authorities, listed in Schedule 19, which have fewer than 250 staff, or of private organisations that are discharging public functions but have fewer than 250 staff, would seriously limit the coverage of the equality duty. For instance, the amendment would exclude around 70 per cent of all central and local government bodies from the equality duty and that is plainly wrong.
	I accept that the amendment is probing but, should it be passed, it would seriously damage the good progress made by the current duties, as it would exempt from the new duty hundreds of public bodies which are subject to the current duties, and would result in serious regression.
	The noble Baroness, Lady Morris, asked whether the charity foundation document or the equality duty would take precedence where a public body contracts out some of its functions to a charity. The charity would have to comply with its foundation document but, in performing public functions, it would also need to have due regard to the need to eliminate discrimination and promote equality in accordance with the duty, so it would have to look at both things.
	The noble Baroness asked whether the equality duty would apply to a single person performing a public function. Yes, it is important to remember that public functions are vital services which impact on the well-being of the public and, therefore, it is irrelevant whether it is delivered by a large organisation or a single person-a GP or a Secretary of State. She asked whether, if a public function were outsourced to a religious organisation, the exemption in paragraph 3 of Schedule 9 would still apply. Yes, it would. The equality duty operates alongside provisions prohibiting discrimination in the rest of the Bill.
	I can answer the question which the noble Baroness asked about whether small authorities were consulted on the extension of the new duty to new strands. Yes, in June 2007, we launched a three-month public consultation on the proposal to extend the equality duty. Around 4,000 organisations and individuals responded, including small organisations and representatives of small organisations, such as schools and health service providers. I ask the noble Baroness to withdraw her amendment.

Baroness Morris of Bolton: I am most grateful to all noble Lords who have joined in this short debate. I am also grateful that the Minister pointed out, as I did at the beginning, that this is simply a probing amendment. We do not seek to be regressive in any way, although I very much enjoyed the brief history of equality law given by the noble Lord, Lord Lester, and I look forward to reading that again. The point raised by the noble Earl, Lord Erroll, shows that there is confusion in this area about what applies where. I am most grateful to the Minister for answering some of those concerns on the record. I beg leave to withdraw the amendment.
	Amendment 114ZA withdrawn.
	Amendment 114ZB
	 Moved by Baroness Morris of Bolton
	114ZB: Schedule 18, page 196, line 41, at end insert ", but no such order may vary or omit the exceptions in paragraph 3 or 4(1), (2)(a) to (e) and (3)"

Baroness Morris of Bolton: My Lords, in moving Amendment 114ZB, I will also speak to the other amendments in our name. These amendments are in line with recommendations from the Delegated Powers and Regulatory Reform Committee. I welcome the fact that the Minister tabled amendments on Friday which would meet with some of these recommendations and address most of the concerns raised by our amendments.
	Amendment 114ZB is tied into Schedule 18, which is about the public sector equality duty exceptions. Our amendment, following a recommendation by the DPRRC, would ensure that only primary legislation could amend the list of exemptions in this schedule with reference to judicial and parliamentary functions. We are very pleased that the Government have now accepted that there is no need to retain flexibility in this instance.
	Furthermore, perhaps there is a case for suggesting that it might be inappropriate for a Minister to be able to alter the exceptions relating to other organisations. Can the Minister clarify, for example, when there might be a case for removing the exemptions relating to the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and part of the Armed Forces? Is there a specific need to retain the flexibility that regulations would allow, or does she agree that this sort of decision should be subject to primary legislation?
	Our second set of amendments in this group, Amendments 115A and 135AA, add a similar power which is awarded to Clause 150(1). This subsection would allow the Minister to update Schedule 19 to include or exclude different bodies. In accordance with the recommendations from the DPRRC we tabled Amendment 115A. It would exclude judicial and parliamentary bodies from the regulation by which amendments can be made to the schedule and so make them subject to the public sector equality duty. Amendment 135AA would mean that the reduced power would also be subject to affirmative resolution for greater scrutiny. We welcome the Government's amendments which, like ours, are designed to meet this recommendation. I apologise; I have been editing my notes as a result of today's events and I think that I have probably edited them too much.
	However, the government amendments retain the negative power for the changes that occur when an entry is removed just because it has ceased to exist, or because it has changed its name. That seems sensible. Have the Government had any response from the DPRRC about whether this would meet its concerns? It seems a critical factor in knowing what their response is. Furthermore, what consultation has occurred with the devolved Ministries about the changes to their powers here? I beg to move.

Baroness Thornton: My Lords, we too have edited our notes down. I am just reading through them and cannot see any reference to one of the noble Baroness's amendments. I am hoping that somebody will send me a note about it.
	I am going to speak to government Amendments 114ZC, 115ZA, 135AB, 136ZZD, 136ZZE, 136ZAA, 136ZAB, 136ZAD, 136ZAE, 136ZAF, 136ZCA, 136ZCB and 136ZCD, which reflect the recommendations made in paragraphs 11 and 13 of the Delegated Powers and Regulatory Reform Committee's third report of Session 2009-10.
	I shall speak first to government Amendment 114ZC. This seeks to achieve the same aim as the noble Baroness's Amendment 114ZB, in response to the committee's question whether it would be appropriate for the exceptions to the equality duty relating to judicial functions or those relating to parliamentary bodies to be removed or limited by statutory instrument. This amendment limits the power in paragraph 5 of Schedule 18 so that it cannot be used to remove these exceptions from Schedule 18. Primary legislation would therefore be required to remove or limit these exceptions. While there is no difference between the intentions of the noble Baroness's amendment and this one, we think that the wording of our amendment provides more precise clarification.
	Government Amendment 115ZA reflects the committee's recommendation that the power in Clause 150 to amend the list of public bodies subject to the duty, as referred to by the noble Baroness, should not be capable of listing the judicial and parliamentary bodies that are currently excluded from the scope of the duty by Schedule 18. The intention behind this amendment is the same as that behind Amendment 115A, which the noble Baroness spoke to. Again, however, we think that our wording provides greater clarity on this important matter.
	I turn now to Amendment 135AB,which reflects the recommendation made in paragraph 11 that the power in Clause 150 should be subject to the affirmative procedure. The amendment is seeking the affirmative procedure to apply to the power to make changes to the list of bodies subject to the equality duty, except where we simply want to amend the entry for a body whose name may have changed or where a body is removed because it ceases to exist. We think that it will be more appropriate for the negative procedure to apply in these particular cases. To have to use the affirmative procedure for such minor issues is likely to be a waste of valuable parliamentary time. Of course, if Parliament wishes to debate any use of this power, it can still choose to do so by praying against a negative resolution order. The noble Baroness asked about removing exemptions on organisations such as security services, Armed Forces and so on. We are retaining a measure of flexibility because those organisations are susceptible to change and because they could change their names or merge.
	Amendment 135AA-this was missing from my notes-would delete what the Government have proposed and our Amendment 135AB would amend it. Amendments 136ZZD, 136ZZE, 136ZAA, 136ZAB, 136ZAD, 136ZAE, 136ZAF, 136ZCA, 136ZCB and 136ZCD ensure consistency with the Welsh and Scottish Ministers. I therefore invite the noble Baroness not to move Amendment 135AA.

Baroness Morris of Bolton: I thank the Minister for that comprehensive reply and it gives me great pleasure to withdraw my amendment.
	Amendment 114ZB withdrawn.
	Amendment 114ZC
	 Moved by Baroness Royall of Blaisdon
	114ZC: Schedule 18, page 196, line 41, at end insert-
	"(2) But provision by virtue of sub-paragraph (1) may not amend this Schedule-
	(a) so as to omit an exception in paragraph 3;
	(b) so as to omit an exception in paragraph 4(1) so far as applying for the purposes of paragraph 4(2)(a) to (e) or (3);
	(c) so as to reduce the extent to which an exception referred to in paragraph (a) or (b) applies."
	Amendment 114ZC agreed.
	Schedule 18, as amended, agreed.
	Clause 149 : Public authorities and public functions
	Amendment 114A not moved.
	Clause 149 agreed.
	Schedule 19 : Public authorities
	Amendment 115
	 Moved by Lord Hunt of Wirral
	115: Schedule 19, page 198, line 37, at end insert-
	"The relevant qualifications regulator (The Office of the Qualifications and Examinations Regulator-Ofqual)."

Lord Hunt of Wirral: My Lords, this is a simple, probing amendment and I will make some brief remarks. The debate about whether Ofqual should be included under the public sector equality duty was covered concisely and effectively in another place. I recall that in relation to this the Solicitor-General said:
	"I completely agree that Ofqual should be subject to the equality duty".-[Official Report, Commons, 30/6/09; col. 594.]
	She said that that would be done after the Apprenticeship, Skills, Children and Learning Bill had passed through your Lordships' House and become an Act, thus giving Ofqual statutory status.
	Of course, we now have the Apprenticeship, Skills, Children and Learning Act, but I cannot see an amendment here to bring Ofqual into Schedule 19 and make it subject to the public sector equality duty. It may well be that there is a simple answer to this. Perhaps I have missed something that would explain this entirely. However, I have not seen an explanation, and it would be marvellous if the Chancellor of the Duchy of Lancaster could enlighten me. I beg to move.

Lord Low of Dalston: My Lords, I very much welcome this amendment, moved by the noble Lord, Lord Hunt, to clarify the application of the public sector equality duty, for Ofqual is just the start. On further examination, the schedule proves to be full of holes. I am very concerned to observe that it contains numerous omissions-if an omission can be said to be "contained". I hope that that is just the result of the sort of unfortunate oversight that the noble Lord, Lord Hunt, was so exercised about the other day. On the assumption that it is, I hope that the Government will commit to remedying the deficiencies in the schedule before it leaves this House.
	The Government have given numerous commitments that all organisations covered by the current duties will be covered by the integrated duty. Exclusions that I have noticed include the Electoral Commission, which is surprising when one considers that only recently we were debating political diversity. The NHS is included, but none of its regulators are. The omission of regulators in general is concerning, as is the omission of a number of educational bodies. The General Teaching Council is just one example. As an avid supporter of the arts, I was particularly concerned not to see the Arts Council in the schedule. I could go on, but I shall not. It just remains for the Government to fulfil their commitments and put the schedule to rights. Of course they have the power to change the list by regulation, but they should not expect the Committee to buy a pig in a poke like that. They should populate the schedule comprehensively and reserve their order-making power for amending the list when bodies are created or wound-up. I therefore very much support the amendment.

Baroness Royall of Blaisdon: Amendment 115 would insert the Office of the Qualifications and Examinations Regulator-Ofqual-into Schedule 19, which is the list of public authorities subject to the equality duty. Ofqual, which will be formally established in April and will be the new independent regulator of qualifications and tests in England, must of course be subject to the equality duty. The Government would not contest that. I recognise what the noble Lord, Lord Hunt, said about the comments in the other place by my right honourable friend the Solicitor-General. However, we have since established that we do not need to add Ofqual to Schedule 19 to deliver the desired outcome. The Bill will achieve that without the noble Lord's amendment. The Apprenticeships, Skills, Children and Learning Act, which received Royal Assent this autumn, establishes Ofqual as a non-ministerial government department, and government departments, including non-ministerial ones, are already covered in Part 1 of Schedule 19. This means that there is no need to include it as a separate entity within Schedule 19.
	The noble Lord, Lord Low, suggested that Schedule 19 is practically empty and that the duty covers very few bodies. Schedule 19 as it stands is not the end of the story. At the moment it contains only core generic bodies, such as government departments, local authorities, NHS bodies, educational bodies and the police. We have been clear that we intend to update the schedule with more bodies. Now that we have publicly set out the requirements of the general duty, we want to talk further with other bodies that we think should be included in the schedule. Let me stress that, in broad terms, the duty will cover the same bodies as the current duties and there will be no reduction in coverage. I assure the noble Lord that we are not offering noble Lords a pig in a poke. The two-stage approach is the process that was used to build up the list of bodies subject to the race duty, and we are simply following that precedent. It has allowed us to have informed discussions with those who we propose to list, and we will include them via regulations. There are no inconsistencies, and I hope that this brief explanation will persuade the noble Lord to withdraw his amendment.

Lord Hunt of Wirral: Perhaps the Chancellor of the Duchy of Lancaster can clarify the position. I was following her in reading Part 1 of Schedule 19, which is entitled "Public Authorities: General". I saw under the heading "Ministers of the Crown and government departments": "A Minister of the Crown", and
	"A government department other than the Security Service, the Secret Intelligence Service or the Government Communications Headquarters".
	She was, however, referring to another type of body. Then, when I looked in the remaining part of Part 1, under the same heading, I did not see the words that she is now explaining appearing anywhere. I am simply seeking further clarification. Could she, please, give noble Lords a little more chapter and verse of exactly where this can be found?

Lord Low of Dalston: My Lords, before the Minister responds to the noble Lord, Lord Hunt, perhaps she can say whether she means that the regulation-making power will be used to update the schedule-I think that she used the words "update the schedule"-so that the additional bodies with whom she wishes to have discussions with a view to bringing them within the public sector equality duty will not just reside in regulations, but will be introduced into the schedule by the regulation-making power. Is that what she had in mind?

Lord Hunt of Wirral: While the noble Baroness is considering the important point made by the noble Lord, Lord Low of Dalston, can she give us an idea of the timescale within which she proposes to give noble Lords and others the clarification that we seek?

Baroness Royall of Blaisdon: Yes, my Lords. Non-ministerial departments are included in Part 1 of Schedule 19, because non-ministerial departments are considered to be government departments. That is what I am informed and that is how they are covered. In response to the questions from the noble Lord, Lord Low, our plan is to publish the list of organisations that we intend to be covered under Schedule 19 in the summer, at the same time as we consult on the draft regulations for specific duties. That is the timescale to which we are working. When we impose the specific duties, the regulations will be subject to the affirmative procedure, which means that government will have the opportunity to debate proposals fully. I think that that is correct. I am looking to the Box for assistance.

Lord Hunt of Wirral: Perhaps the noble Baroness can further clarify the point. I always tend, when looking at the interpretation side of any proposal before this Committee, to look at Clause 204, entitled "General interpretation". I could not see that a government department was defined there in the way that the noble Baroness is describing. It may well be that it is defined elsewhere in a generic way, but I could not see it in Clause 204. We have not yet reached Clause 204, but we may well a little later. It may be helpful if the noble Baroness could explain.

Lord Lester of Herne Hill: May I have a go, although I will probably get this quite wrong? In Clause 149:
	"A public authority is a person who is specified in Schedule 19".
	The definition is extended in subsection (4) to "certain specified functions"-so it is broken down there. Subsection (5) then defines a public function as:
	"a function of a public nature for the purposes of the Human Rights Act",
	which has a flexible definition. The power to add to a list of who the public authorities are is the subordinate power, which will be subject to the affirmative procedure, which then gives the flexibility to apply the definition in Clause 149 to particular bodies. I hope that that is right.

Baroness Royall of Blaisdon: My Lords, I understand that that is correct. Does that answer the noble Lord's questions about a non-ministerial government body?

Lord Lester of Herne Hill: I think the Minister said that a non-ministerial body is a government department. Is it not better to say that it is a public authority?

Baroness Royall of Blaisdon: Yes, my Lords, just as the department of the Treasury Solicitor, for example, is a non-ministerial department. It is a similar sort of body.
	Again, I will clarify for the noble Lord, Lord Low, that we will bring forward a consultative list in the summer at the same time as we consult on the draft regulations for the specific duties. The regulations that add the list to Schedule 19 will be subject to the affirmative procedure, so there will be proper scrutiny of the list.

Lord Mackay of Clashfern: My Lords, are the non-departmental public bodies in or out? "A government department" is not a good phrase to cover the non-departmental public bodies.

Lord Lester of Herne Hill: As I understand it, the Equality and Human Rights Commission is one such body and would be covered. My understanding is that such a body is a public authority, not a government department.

Baroness Royall of Blaisdon: My Lords, non-departmental public bodies will be listed in Schedule 19.

Lord Low of Dalston: My Lords, I reassure the Minister that she has one satisfied customer. I am grateful for her reassurance about the timescale and that the expanded list will be subject to parliamentary scrutiny.

Lord Hunt of Wirral: My Lords, I am very grateful to the noble Lord, Lord Low of Dalston, for making some very important points, and I join him in thanking the Chancellor of the Duchy of Lancaster for clarifying the position and in particular for heeding and accepting the advice of the noble Lord, Lord Lester of Herne Hill. As he is a solicitor of the senior court-I think that I am no longer allowed to say the Supreme Court-I normally have to pay substantial sums to obtain that sort of advice. I do not want to debase the advice by saying that the noble Lord gives it completely free of charge, but he does that on so many occasions in this place and I am very grateful to him for clarifying "public authority", "government department" and "government authority". I share the slight confusion of my noble and learned friend Lord Mackay of Clashfern as to exactly where we are. I thank the noble Lord, Lord Lester of Herne Hill, for pointing us in the right direction, but I am not sure that I have yet reached the destination that he would advise me to reach.

Lord Lester of Herne Hill: I do not know whether the noble Lord can afford to go on like this, but he should remember the well known maxim, "No good deed goes unpunished".

Lord Mackay of Clashfern: My Lords, clarity has come from the fact that non-departmental public bodies will be listed. The definitions in Schedule 19 are only for those that are there already. A great number will be added in the course of our beautiful summer that is coming.

Lord Hunt of Wirral: I do think that we have got somewhere. That is the important thing. I was a little misled at first by the description of a non-departmental public body as a government department, but I have now reached an adequate pausing point for further consideration. I am very grateful to the noble Baroness for the clarity that she has introduced, and I beg leave to withdraw the amendment.
	Amendment 115 withdrawn.
	Schedule 19 agreed.
	Clause 150 : Power to specify public authorities
	Amendment 115ZA
	 Moved by Baroness Royall of Blaisdon
	115ZA: Clause 150, page 96, line 6, at end insert-
	"( ) An order may not be made under this section so as to extend the application of section 148 to-
	(a) the exercise of a function referred to in paragraph 3 of Schedule 18 (judicial functions etc);
	(b) a person listed in paragraph 4(2)(a) to (e) of that Schedule (Parliament, devolved legislatures and General Synod);
	(c) the exercise of a function listed in paragraph 4(3) of that Schedule (proceedings in Parliament or devolved legislatures)."
	Amendment 115ZA agreed.
	Amendment 115A not moved.
	Clause 150, as amended, agreed.
	Clauses 151 to 153 agreed.
	Clause 154 : Power to impose specific duties: supplementary
	Amendment 115B
	 Moved by Lord Hunt of Wirral
	115B: Clause 154, page 99, line 4, at end insert-
	"( ) Regulations made under sections 152 or 153 must comply with the Public Sector Equality Directive 2004/18/EC and Directive 2007/66/EC."

Lord Hunt of Wirral: My Lords, the purpose of the amendment is to invite the noble Baroness to explain what appears on the surface to be incompatibility between the Government's proposals on public procurement and one, or perhaps even two, directives in the European Union.
	Clause 154 gives the power to a Minister of the Crown, or to a Scottish or a Welsh Minister, to impose specific duties on public authorities listed in Schedule 19 that are also contracting authorities for public procurement purposes. The Minister may correct me if I am wrong, but I assumed that the Government's intentions are for public procurement to be another area in which the goal of equality can be pursued.
	We therefore tabled this probing amendment, which would make any order made under Clauses 152 or 153 subject to public sector directive 2004/18/EC and directive 2007/66/EC, merely to inquire as to the status of the European directives on public procurement that seem to undermine the Government's intentions in this area. I immediately apologise to the Committee for any confusion that may have been caused by the reference in the amendment to the "Public Sector Equality Directive". What was meant, of course, was "public sector directive".
	The intention is that public sector authorities should be able to use procurement as an extra tool to secure equality. The amendment seeks to clarify the extent to which the Government have taken the EU directives into account on this issue. I am sure that they have; I merely seek reassurance, which I believe the Minister will give. However, the Committee may find it useful if I explain why this is a complicated area.
	Public sector directive 2004/18/EC requires that public contracts are awarded on the basis of only two award criteria: "the most economically advantageous tender" or "the lowest price". In what way do the Government expect the public procurement provisions to work given these constraints?
	Public sector directive 2007/66/EC has provisions within it that state that there must be review procedures, which would include the award of damages to any person who is harmed by an infringement of the specifications of the directive. We therefore have one European directive which states that public procurement can be based only on two very narrow criteria, and one which states that any infringement of this would result in the award of damages to the party that has lost out. Have these directives been taken into account? What is the solution for ensuring that the Government's objective of equality-based public sector procurement can also occur? I look forward to hearing the response of the Chancellor of the Duchy of Lancaster. I beg to move.

Baroness Royall of Blaisdon: My Lords, Amendment 115B, tabled by the noble Baronesses, Lady Warsi and Lady Morris of Bolton, seeks reassurance that any regulations that impose specific duties on public authorities listed in Schedule 19, which are also contracting authorities in relation to their public procurement activities, will comply with the European legislation that regulates public procurement. I can offer that reassurance.
	Any regulations made under Clause 152 would have to be made with the EC directives in mind and any failure to comply with the directives, whether in the specific duties or any other legislation, could result in infraction proceedings. For this reason, it is superfluous to have an express provision in the Bill. Directive 2004/18/EC specifies the procedures that public bodies, known as contracting authorities, have to follow when awarding certain contracts for goods, services and works. Directive 2007/66/EC sets out the remedies that are available to economic operators who think that a contracting authority has breached the provisions of directive 2004/18/EC.
	Both directives have been transposed into UK law by the Public Contracts Regulations 2006 and the Public Contracts (Scotland) Regulations 2006. I should like to make it clear that the Government do not propose to use the specific duties to alter either the procedures set out in directive 2004/18/EC or the remedies prescribed in directive 2007/66/EC and that any attempt to put this in the Bill is unnecessary.
	The public sector spent approximately £220 billion last year on goods and services. That is a huge amount of money and much of it went to private providers following the public procurement procedures. The public sector has an important opportunity to use its purchasing power to promote equality wherever possible and it has legal obligations under the equality duty to do so. Achieving value for money and delivering wider and improved social outcomes, such as equality objectives, often go hand in hand. The procurement proposal in the Bill makes this relationship clear.
	In June 2009, the Government consulted on policy proposals for the specific duties, including proposals relating to public procurement. Last month, the Government published a policy statement in response to the consultation. The policy statement includes proposals for specific duties requiring contracting authorities to consider the use of equality-related award criteria where they relate to the subject matter of the contract and are proportionate, and to consider incorporating equality-related contract conditions where they relate to the performance of the contract and are proportionate.
	Both those proposals require any proposed action taken by a contracting authority to be proportionate and to relate to the subject matter of the contract in accordance with public procurement procedures. For example, as part of a major estate renovation scheme and in an attempt to redress the local and national under-representation of women in building trades, a local council could include a contract condition that requires 10 per cent of the person weeks required to complete the works to be delivered by women who have either an apprenticeship, traineeship or employment contract with the contractor or sub-contractor and are engaged in a training programme which is accepted by the employer. The current procurement regulations allow for this contract condition because 10 per cent would be considered proportionate and the proposals in the Bill will not change this.
	The Government policy statement also included the proposal that public authorities should, when setting their equality objectives and how they intend to achieve them, set out how they will use their public procurements to help meet their equality objectives. For instance, the evidence collected by an NHS trust might show that a particular section of the community within a diverse area is inadvertently excluded from accessing a service. An equality objective might be to redress this exclusion to ensure the service is offered, as it should be, to all sections of the community. The trust would need to consider how its procurements might help it to achieve this objective. These procurement proposals were subject to extensive consultation and views expressed were mixed. However, there was a general acceptance for the inclusion of equality-related measures that were relevant to the contract and proportionate.
	The directives do not undermine the provisions in the Bill and we do not believe that there is a contradiction between award criteria that take into account the most economically advantageous tender and equality; for example, quality is a permitted criteria when deciding the most economically advantageous tender. Quality will be linked to many equality issues, such as whether a service meets the needs of users from all sections of the community.
	I believe that the package of proposals that we intend to take forward in regulation is proportionate and appropriate. Again, I confirm that the new proposals comply with the European legislation that regulates public procurement.

Lord Lester of Herne Hill: Perhaps the Minister will be able to assure the noble Lord, Lord Hunt, that it was because of the brilliance of the noble and learned Lord, Lord Howe of Aberavon, in the European Communities Act 1972 that we made quite sure in this country that even if all of that were not the case, European law in this area would have to be given either direct effect or indirect effect because the Conservative Government at the time produced that admirable mechanism. I mention that only because I know that the noble Lord, Lord Hunt, would like that additional reassurance that his own party has helped, in its most European phase, to achieve the right result.

Baroness Royall of Blaisdon: My Lords, I would certainly endorse that and I pay very warm tribute to everything that the noble and learned Lord, Lord Howe of Aberavon, did in ensuring that we are such a strong partner in the European Community and that we can comply with these directives.

Lord Hunt of Wirral: My Lords, I am a little nervous about saying anything, except to point out that the Whip on the legislation was provided by Mr Kenneth Clarke. As I represent the party of Europe, I am particularly pleased that the noble Lord, Lord Lester of Herne Hill, should have singled out praise for my noble and learned friend in the way that he did. But I am not quite sure what relevance that has because I had already been persuaded by the Chancellor of the Duchy of Lancaster that these amendments were surplus to requirements, although I will now carefully study every word that she has spoken. My understanding of these provisions has been increased considerably and her reassurance is very welcome. In those circumstances, I beg leave to withdraw the amendment.
	Amendment 115B withdrawn.
	Clause 154 agreed.
	Clauses 155 and 156 agreed.
	Clause 157 : Positive action: general
	Amendment 115C
	 Moved by Lord Lester of Herne Hill
	115C: Clause 157, page 100, line 11, leave out "which" and insert "provided it"

Lord Lester of Herne Hill: My Lords, I shall speak also to Amendment 118A and to the group as a whole in a single speech. I should emphasise that we on these Benches strongly support both clauses and oppose any dilution of them, and that both clauses are permissive, not mandatory. My amendment to Clause 157 is probing in nature and not intended to hobble or curtail its scope or effect. The amendment to Clause 158 is intended to state in the Bill, in the interests of legal certainty, what is required by EU equality law; namely, compliance with the principle of proportionality. That would be in accordance with the recommendations made by the Joint Committee on Human Rights at paragraph 289 of its report on the Bill.
	Positive action is a necessary element in the concept of equality, as the European Court of Human Rights reaffirmed in the DH and others v Czech Republic case. Article 14 of the convention does not prohibit a member state from treating groups differently in order to correct what it calls "factual inequalities between them". In some circumstances, a failure to attempt to correct inequality through differential treatment may in itself give rise to a breach of Article 14. That is also true of EU equality law. Article 7 of the framework directive provides that with a view to ensuring,
	"full equality in practice, the principle of equal treatment shall not prevent any member state from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds listed in Article 1".
	It recognises that a concept of literal equality is too narrow. In William Blake's words:
	"One Law for the Lion and the Ox is Oppression".
	The relevant Explanatory Notes are important. Both here and throughout, they are expressed with great clarity, for which we should be grateful to their authors. I want to mention that particularly because I have not read Explanatory Notes of this quality before, and although I must not name their authors, I think that if I could do so, I would say that Melanie Field and James Maskell between them have done the most extraordinary job I have ever seen. I hope that future Bill teams will work to that high quality. Paragraph 525 explains that Clause 157 provides that,
	"the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim".
	Paragraph 526 explains that:
	"The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed".
	To comply with the principle of proportionality, the positive action measure in question must both pursue a legitimate aim and be necessary to achieve that aim. Clause 157(1) relates to the European legal principle that measures must be shown to be necessary and focused on a specific disadvantage, requiring that the person concerned reasonably thinks that paragraphs (a), (b) or (c) apply. Clause 157(2)(a), (b) and (c) define the legitimate aims that may be pursued. I note that the Official Opposition have not tabled any amendments to limit the scope of Clause 157 by substituting "can demonstrate" for "reasonably thinks", as they have done in the next group in relation to Clause 158, to which I now turn.
	It is important to record that paragraph 532 of the Explanatory Notes explains that Clause 158,
	"permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the same protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits".
	The clause defines recruitment broadly so that, for example, it includes a pupilage or tenancy in a set of barristers' chambers such as my own. It is intended to allow the maximum extent of flexibility to address disadvantage and underrepresentation where candidates are as good as each other, within the confines of European law. The Explanatory Notes explain in paragraph 535 that the clause is new:
	"While current legislation allows employers to undertake a variety of positive action measures, for instance, offering training and encouragement for certain forms of work, it does not allow employers to take any form of positive action at the point of recruitment or promotion. This clause extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics".
	This is an important advance on current law. When I helped prepare the sex discrimination and race relations Acts in the mid-1970s, we included narrowly restrictive provisions allowing positive action to be taken to encourage women and members of ethnic minorities to apply for jobs where they were underrepresented, and to provide them with special training. But we were unable to obtain agreement to allow any form of positive action at the point of recruitment or promotion. That was regrettable and is one reason why employers have made insufficient use of the positive action provisions. They may encourage women or ethnic-minority individuals to apply for work where they are underrepresented, such as in the police service, and they may give them special training to equip them for the work, but they may not use underrepresentation as a reason for appointing, say, a woman or a person from an ethnic minority who is as qualified as other candidates in preference to a candidate who does not share the relevant protected characteristic.
	As regards my own profession as a barrister, the Equality and Diversity Committee of the Bar Council, in a 2007 response to a government consultation on the Bill, explained why greater and clearer positive action measures are needed under the law. The committee pointed out that the current law limits positive action measures to a greater extent than is permitted by the relevant European directives. Currently, for example, apprenticeships and other on-the-job training schemes cannot be used as positive action measures. It argued for the need for a wider range of "voluntary balancing measures" to be available to organisations and employers. Thinking of the profession of the noble Lord, Lord Hunt, the Law Society in response to the same consultation also indicated that further "balancing measures" are needed. We therefore welcome the changes made in Clause 158 to encourage much greater use of positive action.
	The Official Opposition seek, in Amendments 117 and 118, to restrict the scope and effect of Clause 158 and apparently intend to oppose the Question that Clause 158 should stand part of the Bill, even though in the other place they did not seek to remove the clause. It is questionable whether the amendments would make any practical difference other than to cause confusion and limit the effectiveness of Clause 158. It is ironical that they should do so, for it was the Thatcher Government who, in the Fair Employment (Northern Ireland) Act 1989, introduced a far more robust system of positive action to combat discrimination against Catholics and Protestants in the workplace, drawing on the Canadian employment equity approach which incorporated monitoring and affirmative action, but not quotas. The 1989 legislation of the noble Baroness, Lady Thatcher, provided for compulsory religious monitoring by both public sector and private sector employers. It required employers, at least every three years, to review their employment practices and to compare the religious composition of their workforce with available labour in the catchment area. The legislation also provides for affirmative action measures which exclude quotas but include the setting of goals, timetables and outreach measures.
	Monitoring covers about 70 per cent of all employees in Northern Ireland and all employments with 11 or more employees. The Equality Commission for Northern Ireland has kindly informed me that the data reveal that substantial progress has been made and that a sizeable body of independent research evidence shows that the legislative provisions and their implementation have been successful in improving employment equality. The Conservative Party may and should claim credit for introducing the 1989 scheme. It is therefore ironical that it now opposes the much narrower provisions of Clause 158, which are entirely permissive and voluntary and subject to the proportionality principle. My amendment seeks to put the proportionality principle explicitly on the face of Clause 158, and I hope that the Government will be able to accept it.
	I should add that this group also includes Amendment 119, tabled by the noble Baroness, Lady Knight, which would give blanket permission to discriminate in favour of the over-50s and disabled people without reference to proportionality. That would clearly violate European law. There is of course nothing to prevent more favourable treatment of disabled people; Clause 13 so provides. The positive action provisions in the Bill apply to disability, unlike the Disability Discrimination Act, to permit positive action between different types of disability-for example, permitting an employer to target training at people with learning disabilities, or to target advertising at people with sight impairments. In relation to age, as well as the positive discrimination measures permitted by Clauses 157 and 158, Clause 13 provides that age discrimination is not prohibited where it is a more proportionate means of achieving a legitimate aim.
	I am sorry to have taken so long, but I will not make a second speech on those issues.

Lord Hunt of Wirral: My Lords, as the noble Lord, Lord Lester, moved into the 10th minute of his speech, I thought to myself that perhaps it would have been a much shorter speech had he been able to hear my explanation of why these amendments have been tabled, and particularly of why we wanted a debate on Clause 158 stand part. It is not to get rid of Clause 158, because we are happy with "positive action"; it is to allow us to raise our concerns about the operation of the clause. I will come to that and I am mindful of all the points that he raised.
	Amendments 117 and 118 are designed to change the language of the clause from "as qualified as" to "equally qualified to". As I have already explained, we raised Clause 158 stand part to allow further discussion about what is a very important clause. We do not like the clause if it is to be used as positive discrimination, but we would be happy with it if it were to be used as "positive action", as the title suggests. We are concerned that without our amendments the clause will verge towards the former, which we could not agree to.
	The first point that I want to raise is that I was under the impression that the Government intended this clause to be about "positive action". This is made clear not only by the title of the clause itself, but also by the statement made by the Minister for Women and Equality, Harriet Harman, at Second Reading in another place. She presented this clause on that occasion saying that,
	"the Bill includes the power to take positive action",
	to change the situation whereby, if an employer,
	"is faced with two equally qualified candidates, one a man and one a woman",
	in this example,
	"the employer cannot actually say, 'Right, we've got two equally qualified people for this job, but I'm going to take you, because you're a woman and I want to diversify my management team'".-[Official Report, Commons, 11/5/09; cols. 557-58.]
	It seems clear that the Government agree with us that this clause should be used for a tie-breaker situation between two candidates who are equally qualified. We would very much support the use of positive action in this way. It is clear that there may sometimes be a desire to discriminate in favour of a candidate with one particular characteristic. The example which has been done to death is one where a job vacancy has opened up in a primary school, when all the interviews, checks and tests have been carried out and the two candidates left are equally qualified to do the job. In this presumably rare situation, the employer would then be allowed to choose the male candidate, with the protected characteristic of gender being the factor which gave him the lead over the other candidate, who was equally qualified.
	I hope very much that the noble Baroness the Chancellor of the Duchy of Lancaster can confirm the Government's views on this clause. We have heard what Harriet Harman said about it in May in another place. By the time the Bill reached your Lordships' House, however, a different tune was being played. The Minister introduced the clause saying that it,
	"allows ... but does not compel",-[Official Report, 15/12/09; col. 1408.]
	employers to recruit a person from an underrepresented group in their workforce when choosing between otherwise equal candidates for recruitment or promotion. This seems to give a different emphasis on the clause. My understanding from this statement is that employers would be allowed to make a choice from a pool of candidates rather than select one person in a tie-break situation.
	The Explanatory Notes lend a little more credence to this. One of the examples states that, where the police service employs disproportionately low numbers of people from an ethnic-minority background, and where a number of candidates were,
	"as qualified as each other",
	preferential selection can be made,
	"to a candidate from an ethnic minority background".
	Our fear is that this clause is there to allow, in effect, positive discrimination. It appears that, instead of a clause which allows employers to make decisions based on protected characteristics in a tie-break, this clause is going to be much broader. We need to clarify this. In fact, would it allow employers to make a decision based on a protected characteristic when there is a pool of candidates who are considered all to be above a certain level of qualification and so can be considered as "qualified as each other"? We could not support that. It would be helpful, for the sake of clarity, if the Minister could confirm whether the Government's policy is indeed that this should only be used in a tie-break situation.
	Clarity is necessary because the Minister in another place said that we should not worry because Clause 158(4)(b) prevented any kind of "policy" decision. In other words, this would mean that a company could not have a policy of favouring groups who shared a protected characteristic. I wonder whether this fits with the Government's seeming change of heart about whether this provision should relate to a tie-break or pool situation. The example given in the Explanatory Notes about the police recruiting ethnic minorities seems to show instead what I would have assumed subsection (4)(b) was designed to prevent. Therefore I look to the noble Baroness the Chancellor of the Duchy of Lancaster to clarify that for us. Does subsection (4)(b) prevent a blanket policy-a policy in relation to all recruitment drives-but allow a general policy in relation to one appointment?
	To put it another way, is it the Government's intention that a company should be able to say, "We have not employed many of this particular section of people recently", then advertise a job, interview people from all backgrounds but, when it has found a pool of 20 candidates with the relevant qualifications and skills, to pick the candidate representing what it believes to be an unrepresented class or people over the others? We welcome the commitment to positive action, but this is not the clause we felt we were welcoming when it was first introduced in another place. We are now looking for some reassurance.
	We believe that a clause which allows a decision to be made on a protected characteristic for a legitimate reason is very sensible and gives employers a reasonable freedom. If, however, the policy is broadened so that it is likened to positive discrimination, then it will do more damage than good to the cause of equality in a society which believes also very firmly in a meritocracy.
	We have seen that many of the business organisations agree with the principle of this clause, but they need essential clarity to allow it to operate effectively. The CBI, for example, has told us that it welcomes the intention, but feels the clause is poorly drafted. It is uncertain how it will work in practice. It calls it a tie break. It would be helpful if the Minister could address that point directly in her remarks. The British Retail Consortium also supports the clause, saying that,
	"businesses should be supported to address under-representation in their workforces".
	However, it believes that,
	"it is imperative that legislation and accompanying guidance is clear on how this should be done to ensure employers do not end up falling foul of the law".
	The British Chambers of Commerce agree with this point, saying that the language is too confusing. The Bill uses "as qualified", but the Solicitor-General uses "equally acceptable". To be consistent with European law, we believe that we should use "equally qualified", as the amendment does. They also think that the situation the Government are trying to describe is one where there are two equally qualified candidates. We are looking to the Minister to make this entirely clear in her response. I hope also that she will agree that, for the sake of clarity and the correct use of the provision in the Bill, it is possible to accept our amendments. I also await with interest her response to the amendments tabled by the noble Lord, Lord Lester. He has explained that they are to clarify the use of this procedure and ensure that it is used only in the correct specific circumstances, namely when it is a,
	"proportionate means of achieving a legitimate aim",
	concerning positive action regarding those with a protected characteristic which might otherwise disadvantage them. However, the most important area to clarify is that which we have raised-namely, the need to make absolutely clear that positive action can apply only in a tie break.
	I shall mention the amendment tabled by my noble friend Lady Knight, who sadly is unable to be with us. It raises an interesting issue. We would hope that nothing in this Bill would prevent those over 50 or who are disabled from being integrated into the workforce to address discrimination against these groups, if they were the suitable candidates for the job. However, we cannot support positive discrimination, so this must happen only when a tie break has occurred and two people who are equally qualified have been identified. It is only at this point that a selection on the basis of a protected characteristic should be made.

The Archbishop of York: My Lords, Clause 157 begins with the same phrase as Clause 158, "reasonably thinks that". The noble Lord, Lord Hunt, does not quarrel with those words in Clause 157, so why does he quarrel with them in Clause 158? The wording must be "reasonably thinks" because it is very difficult to demonstrate that the employer has all the facts and reasons, and I am not always convinced that things are as transparent and clear to the person being interviewed. If you have reason to believe that you have been discriminated against, that is all that you require. Then it is for the employer to demonstrate that they have not done that. I should rather put it that way round than require the person who "reasonably thinks" that they have been discriminated against to demonstrate it. For those reasons, I do not think that the words in Clause 158 should be changed, as they are not being asked to be changed in Clause 157.
	The noble Lord, Lord Lester, wants to change the words from,
	"which is a proportionate means of achieving the aim",
	to,
	"provided it is a proportionate means of achieving the aim".

Lord Lester of Herne Hill: I only probed on that and did not intend to pursue it.

The Archbishop of York: I want to continue probing on the noble Lord's behalf. The proviso he provides would save us a lot of bother in future. The words "which is" are slightly weaker. Many people who I have dealt with genuinely believe that they have been discriminated against and have gone through the tribunal and all kinds of different things and still think that they are being discriminated against. You then realise that what they want to do is not proportionate. If there had been a proviso right at the beginning, there is a chance that it would have concentrated the mind. I support the noble Lord's change to "provided it", because it subtly asks whether a person really has grounds and whether it is so proportionate that it will achieve their aims and objectives. The noble Lord and I know of many cases which we have pursued and have been taken all around but which have achieved nothing. I want the noble Lord's probing amendment to be more than probing and to be inserted, because it says it better that simply "which is".
	We have already meandered from Clause 157 to Clause 158. I prefer the phrase "as qualified as", because "equally qualified to" is mathematical. How would you measure it? How will someone know that I am equally as qualified? I sit in your Lordships' House, and I do not think that I am equally qualified as some of your Lordships. It is better simply to say "as qualified as". It is more humbling and more genuine, so I shall stick with that phrase.
	Finally, on "to be recruited or promoted", I do not understand why that should be narrowed. I would rather have both. Of course, some people always worry that positive action means positive discrimination, but the word discrimination can be used in two different ways. In the Latin as well as the Greek, discrimination is the same word as discernment. I understand in this sense that positive action and promotion or recruitment means that it is discerning, not simply leaving someone out. I should rather use the same phrase-which for me is not positive discrimination but positive discernment. Unfortunately, some people do not discern that. I would not quarrel with the drafting as it is, except to say that "provided it is proportionate" is a much stronger way in which to put it.

Baroness Royall of Blaisdon: My Lords, before I address Amendments 115C and 118A, tabled by the noble Lord, Lord Lester, Amendments 117 and 118 in the names of the noble Baronesses, Lady Warsi and Lady Morris, and Amendment 119 from the noble Baroness, Lady Knight of Collingtree, it might help the House if I explain the Bill's positive action provisions.
	Clause 157 builds on and simplifies the current legislative framework for positive action. For the first time, these provisions will be extended to cover all protected characteristics and will apply to them all in exactly the same way. As long as the relevant criteria are met, these provisions can be used to address disadvantage, encourage participation where people with a particular protected characteristic are underrepresented, or meet particular needs. For example, a construction firm wishing to diversify its male-dominated workforce could add a statement to its job advertisement inviting women to apply.
	Clause 158 enables employers to take targeted action with regard to recruitment and promotion. This will assist employers to address underrepresentation and disadvantage, fill skills gaps, and create a more diverse workforce. The decision to extend the existing, more limited, provisions has been welcomed by businesses as a beneficial move. Any use of these provisions remains entirely voluntary; it is not a mandatory requirement. However, to ensure that employers do not misuse these voluntary measures, Clause 158(4) ensures that employers cannot adopt a blanket policy of favouring candidates simply because they have a protected characteristic and are disadvantaged or underrepresented. Each case must be considered on its merits.
	Clause 158 does not permit positive discrimination, nor is it contrary to the "merit principle". It simply allows an employer, when faced with two candidates who are as qualified as each other to carry out a specific job, to use the desirability of widening the diversity of the workforce as the criterion for choosing between them. I reassure the noble Lord, Lord Hunt, that my emphasis is no different to that expressed by my right honourable friend Harriet Harman in another place: there has been no change of heart. I am grateful to the most reverend Primate for his very reasonable support for these clauses.
	Before I turn in detail to the various amendments, I thank the noble Lord, Lord Lester, both for raising the important issue of proportionality in relation to positive action and for his insightful comments on the importance of positive action more generally.
	Amendment 115C would substitute "which" with "provided it", so that the clause would permit positive action provided it is a proportionate means of addressing disadvantage, meeting different needs or reducing underrepresentation. I completely agree with the noble Lord: we would not want the provision to permit action which is disproportionate, or to allow employers or service providers to misuse positive action measures in any way. However, to the great disappointment of the most reverend Primate, I can assure the noble Lord that Clause 157 as drafted will not allow positive action in any circumstances where it is not proportionate. Accordingly, replacing "which" with the alternative suggestion would have no impact on the intent or effect of this provision. Therefore, I urge the noble Lord to withdraw his amendment.
	Amendment 118A would make it explicit that any positive action measure taken in recruitment and promotion under Clause 158 has to be a proportionate means of achieving the aims set out in subsection (2) -helping people overcome a disadvantage or participate in an activity. While we consider that Clause 158 as drafted already implicitly embodies a requirement for proportionality, I accept that there are benefits to making proportionality an explicit requirement: it would it make clearer what this clause is about, allowing employers to take positive action where proportionate, and also better reflect the terminology used in Clause 157, where proportionality is already explicit. I am therefore content to accept Amendment 118A.
	Amendment 117 would change the present wording of the provisions in Clause 158(4)(a) from "as qualified as" to "equally qualified to". Amendment 118 seeks to delete "to be recruited or promoted" from the qualification criteria. We believe these amendments are misconceived and we will therefore resist them.
	It has been claimed that Clause 158 would allow employers to set an artificially low qualification threshold for a job to enable them to gerrymander the selection of the successful candidate-the idea that the pass mark is set so low that almost everyone will make the grade, in the hope that at least one candidate has a targeted protected characteristic. Clause 158 does not permit an employer to recruit or promote a candidate who is less qualified than another just because the employer wants to address disadvantage or underrepresentation-in any event, this would make no business sense. Where the assessment process, in whatever form it takes, evaluates one candidate as having scored, say, 95 per cent and another 61 per cent, those candidates cannot be considered as being as qualified as each other to undertake the job. It is immaterial whether the pass mark was set at 60 per cent, 50 per cent or 40 per cent; the clearly superior candidate must always be offered the job. We are confident that the clause as drafted achieves that effect.
	We consider that the amendments could have the effect of leading employers to interpret the clause too narrowly by considering the provisions as being solely about the equality of qualifications per se. An employer might misinterpret such wording as a requirement that candidates should have identical qualifications, whereas the provision is designed to be available where both candidates have demonstrated that they have met the employer's particular requirements for the post to a comparable standard. Any assessment of candidates' suitability will depend on a number of factors relevant to the job in question, such as experience, aptitude, physical ability, or performance during an interview or assessment. Formal qualifications are only one way in which a candidate's overall suitability may be assessed.
	The impact of such a misinterpretation could be that employers will be reluctant to use the provision unless they have a situation in which candidates have absolutely identical qualifications, or identical scores if a scoring system is part of the assessment process, rather than looking at the respective ability and suitability of each candidate in the round. This would limit the scope for delivering real equality outcomes for women particularly, people from ethnic minority communities and disabled people, for example, who still experience disadvantage and underrepresentation in the labour market. For those reasons, I urge the noble Lord to withdraw the amendment.
	I will briefly mention Amendment 119, tabled by the noble Baroness, Lady Knight of Collingtree, which would appear to permit any action intended to increase the participation of people aged over 50 and disabled people in the labour market. This amendment is unnecessary. The noble Lord, Lord Lester, helpfully explained how the disability and age discrimination provisions in the Bill permit a wider range of differential treatment than is available for the other protected characteristics. In addition, this Government have done much to increase the labour market participation of people aged over 50 and disabled people through targeted programmes such as the Flexible New Deal, which provides tailored help for jobless people of all ages, including those aged 50 and over. I therefore suggest that the noble Baroness's amendment is superfluous, but I also ask the noble Lord to withdraw his amendment.

Lord Lester of Herne Hill: My Lords, I am extremely grateful to everyone who has taken part in this debate, particularly to the most reverend Primate the Archbishop of York for his contribution. When I listen to him on the subject of discrimination, I always feel that he speaks not only as a very distinguished archbishop, but as a human being who understands exactly what the problems of discrimination are, and looks at these issues not as a lawyer but in a common-sense way to make the law work in practice.
	I am only a lawyer, but I have experience within my chambers as a small employer; I doubt we employ more than about 30 people, with probably not more than 75 barristers. We have a different kind of experience, because we are constantly seeking to choose pupils and tenants on the basis of individual merit. I have discussed these provisions of the Bill with the diversity team in my chambers, and they are happy to work within that framework. I have been persuaded by what the Minister has said that proportionality is already fully within Clause 157, and that my words add nothing-although I am very grateful that the most reverend Primate prefers them to those already there. It is not for me to second guess parliamentary counsel, once I am satisfied that the substance is there.
	I am very grateful indeed that proportionality has been written into Clause 158 by the Minister indicating that she will accept Amendment 118A. The most reverend Primate was also talking about "reasonably thinks". I think that is in the next group of amendments, so although I agree with him, we will come back to that later. I share the view of the Minister and the Government about the other amendments. This is, therefore, an opportune moment for me to withdraw the amendment.
	Amendment 115C withdrawn.
	House resumed. Committee to begin again not before the completion of Committee stage of the Terrorist Asset-Freezing (Temporary Provisions) Bill.

Terrorist Asset-Freezing (Temporary Provisions) Bill
	 — 
	Committee

Clause 1 : Temporary validity of certain Orders in Council
	Amendment 1
	 Moved by Baroness Hamwee
	1: Clause 1, page 1, line 3, leave out "31 December" and insert "31 July"

Baroness Hamwee: My Lords, our Amendment 1 is grouped with Amendment 1A. Our first amendment would bring the end of the time over which these provisions can apply-in other words, before both Houses have had an opportunity to consider fuller legislation-forward from 31 December to 31 July. Last night, the Commons voted to reject the proposal to bring the period's end forward to 31 March. We believe from these Benches that it would be wrong to allow what are acknowledged to be temporary provisions to continue any longer than necessary. Indeed, as the noble Baroness, Lady Noakes, reminded the House, not many days ago the Government were considering introducing the long Bill now, rather than putting any temporary arrangements in place in the interim.
	My honourable friend the Member for Cambridge rumbled the Government's objections to the July date because, had they accepted it, it would have amounted to acknowledging that the general election will be on 6 May. The Minister said yesterday that it was "not certain"-I think that she used those words-that it would be possible to undertake the proper scrutiny of the Bill, given the upcoming general election and recesses, if it were earlier than 31 December. However, December really is a long period in which to allow an unsatisfactory situation to continue to apply. We are talking about provisions that relate to the liberty of the subject. In our view, a Bill relating to the liberty of the subject-the longer Bill-should have priority.
	As we are all human, the temptation must be that, if we have a period that runs until December-I say "we" because I suppose that noble Lords will know that we have until December, whereas those in the other place will not know precisely who is batting until then-it is unlikely that anything very energetic will happen until after the Summer Recess. In other words, that would be October, and minds need to be focused and steps taken before that.
	I see that Amendment 1A, tabled by the noble Baroness, Lady Noakes, proposes the long-stop date of 30 April. In real terms, I am not sure whether that is any different from 31 March; I wonder how firmly her tongue was in her cheek in proposing that. She indicates that it was not, but I shall wait to hear what she says. There will certainly be some elections in early May, whether or not the general election is then. We believe that ours is a reasonable mid-point, and I beg to move.

Baroness Noakes: My Lords, my Amendment 1A is in this group, and as the noble Baroness, Lady Hamwee, said, it would replace the sunset date in Clause 1(1) with 30 April, rather than 31 July as she has put forward in her amendment. The key issue for the Committee is when we can scrutinise primary legislation, because there is agreement on all sides of the Committee that the previous regime of orders under the 1946 Act has to be replaced by primary legislation. Not even the Government will claim that if the Bill completes its passage in your Lordships' House this evening there will have been full parliamentary approval for the three orders that were damned by the Supreme Court's judgment. Our support for the Bill is linked exclusively to the consequences of dealing with terrorism if the vacuum caused by the Supreme Court's judgment is not filled immediately.
	Both the structure of the Bill and the timing constraints of our deliberations mean that parliamentary approval is more formal than substantive. We cannot realistically debate the contents of the three orders, and it is pretty certain that we would not want to approve the 2001 or 2006 orders if they were before us on a stand-alone basis. We might have less difficulty with the 2009 order, in that it has taken on board some of the criticisms made in the courts, but it, too, has problems, or at least substantive issues that ought to be debated. The noble Baroness, Lady Hamwee, has tabled amendments to the Long Title of the Bill in order to accommodate some substantive amendments which we will consider later. As I said earlier, however, I do not believe that that is an ideal way to proceed.
	The Government have laid Command Paper 7806, which contains a full draft Terrorist Asset-Freezing Bill, complete with Explanatory Notes and an impact statement. As I explained on Second Reading this afternoon, we had agreed timing with the Government such that the Bill would have had two days in the other place-today and in the week after Recess-followed by three days in your Lordships' House, over a period ending roughly in mid-March. The chairman of the Joint Committee on Human Rights confirmed that his committee could have handled that March timing. The Government have now put that longer Bill on the back burner and proceeded only with this temporary provisions Bill, which is not entirely unsatisfactory. We, like the Liberal Democrats, believe that the Bill should not remain on the statute book any longer than necessary.
	Amendment 1A says that the Bill can stay on the statute book until the end of April. My honourable friend Mr Mark Hoban moved a similar amendment in another place yesterday, with the date of 31 March. The noble Baroness, Lady Hamwee, accused me of having my tongue in my cheek when I moved that date to 30 April. Perhaps I might explain that I have used that slightly longer date because of the Government's decision not to proceed along the lines earlier agreed; that has set back the timetable of getting the Bill through. If a general election comes along before we have concluded our deliberations on a longer Bill, I would hope that we could have completed sufficient scrutiny to allow that arcane process known as wash-up to deal with the rest of the Bill. That might have to stretch into April, depending on when the election is called-assuming, of course, that an election is held on 6 May. I think that that is most people's working assumption, although it could be later.
	The date of 31 July, proposed by the noble Baroness, Lady Hamwee, causes real problems in the context of the general election, which is why if she chooses to test the opinion of the Committee, we will not support her on it. If the Government do nothing in respect of the draft Bill in Command Paper 7806, a new Government formed in early May would not have enough time to process the Bill in the ordinary way-that is to say, using the normal intervals and processes by 31 July. I would hope that if my party formed that Government, we would review and amend the draft before putting it before Parliament. A July sunset would be the most undesirable outcome in that context. If we cannot deal with the issue this side of an election on an expedited process, then, as I explained, we will need a longer period-quite possibly until the end of this year-to prepare legislation and then subject it to scrutiny in the normal way.
	I could have done as the noble Baroness, Lady Hamwee, has done and tabled detailed amendments to the Bill in order to debate the substantive concerns that remain with the formulation that appears in the 2009 terrorism order, but that is merely to tinker with an interim solution. Our strong preference is for Parliament to scrutinise the detailed legislative proposals in the context of draft legislation set out in Command Paper 7806 or something like it. I cannot force the Government to bring a draft Bill to Parliament, but if the sunset clause is set at a modest end-April date, that would require the Government to act now by introducing a draft Bill or something else, rather than sit on their hands and wait for another Government to clear up the mess.
	Of course I hope that my party will form the next Government and that Treasury Ministers will be led by my honourable friend Mr George Osborne. If we come to power, those Ministers will have quite enough to do to clear up the economy and the mess that it is in without having also to deal with the aftermath of a decade of incorrect use of statutory powers. That is why I hope the Government will think again and put proper primary legislation through the House as rapidly as possible.

Lord Elystan-Morgan: My Lords, there is an overwhelming case for the sunset clause to last at least as long as 31 December this year. There may well be a case for having an even longer period, but it seems to me that if any of the amendments proposing other dates were carried, the House would impose on itself a wholly unnecessary straitjacket. Of course, when we are dealing with legislation that is accelerated in this way, there is a legal and moral incumbency on us to see that it is operated for as short a period as is humanly possible. However, we are dealing with extremely complicated situations that need a great deal of thought. Although the draft Bill has been proposed for this short term, it has to be considered from all possible angles. It seems to me that there should be the maximum consultation with all manner of bodies. Why, therefore, confine it to a matter of weeks or, indeed, a few months, if one is speaking of 31 July as a time limit? That is the first reason. It seems to me that there is no case for a wholly unnecessary spectacle of speed and, indeed, of thoughtlessness in this matter, when there is every possible reason for taking as much time as is reasonably necessary in the circumstances.
	The second reason is perhaps somewhat less clear, and that arises from the speech of the noble Lord, Lord Myners, at Second Reading, when he indicated-I hope that I do him no injustice-that the Government's mind was not closed not only in relation to the idea of a longer-term Bill on this matter but in relation to consolidating powers of confiscation, freezing and exercising authority over the property of persons who may be involved in serious crime or, indeed, in terrorism. I appreciate that the noble Lord, Lord Myners, most certainly did not give any undertaking in that regard. I also appreciate that consolidation is now rather different from what it was about 40 years ago when I was a Member of another place and served on one or two consolidation Bill committees, when it was a very mechanical exercise altogether. One did not have to worry about creating anything new at all. It was simply a question of arithmetic, of adding two and two and two and two and coming to a conclusion. Consolidation now is much more creative. One has to consider not only the sheer crude mathematics of various statutory provisions but how one must flesh out a little here or pare a little there. Few Governments in the past 20 or 30 years have ever applied their minds to that sort of consolidation, but certainly on a matter as complicated as this-I think of the ordinary simple lawyer who has to advise a client on where he or she stands in relation to such a matter-it would be a very great blessing indeed. However, you probably could not do it in a matter of months and probably not by 31 December 2010. In those circumstances, therefore, I urge the Committee to consider that all the alternatives to 31 December 2010 are utterly impractical.

Lord Pannick: My Lords, I take a different view from that of the noble Lord, Lord Elystan-Morgan. We are being asked today to approve a temporary measure on the basis that we will not have a proper opportunity fully to debate the substantive measures. I think that we all accept that those substantive measures will have a very serious effect on the individuals concerned. It is therefore incumbent on the Committee to ensure that the sunset clause is as near to today as is reasonably practicable. As I see it, the only issue is how long it will take as a matter of practicality before the substantive Bill can be properly scrutinised. That covers pre-legislative scrutiny, as well as the debate in this House and in the other place. I am surprised that the Government take the view that it will take as long as another 10 months for that to occur, even allowing for the general election and the Summer Recess. I suggest to the Committee that it is incumbent on the Minister to explain-with respect, he has not yet explained this, nor was it explained in the other House yesterday-why it is not practical for Parliament to address the substantive matters more speedily than a sunset clause of 31 December suggests.

Lord Myners: My Lords, we believe that 31 December is the right deadline to set for the expiry of this temporary legislation. As we have discussed today, the issues raised by the asset-freezing legislation are clearly complex and very important. Essentially, we all want to strike the right balance between the needs of national security and the protection of human rights, but reasonable people can and do differ about where the appropriate balance lies. Should the legal test be reasonable suspicion or something higher? Is the judicial review procedure a sufficient legal check on Executive power in this area, or do we require more? These are very significant issues that require careful analysis and consideration and where we need to take account of the views of a wide range of interested parties. With a deadline of 31 July, or the end of April, as proposed by the noble Baroness, Lady Noakes, I do not think that we leave ourselves sufficient time to address these and other important issues.
	I will attempt to answer the question that the noble Lord, Lord Pannick, raised about timetables. We can reasonably expect pre-legislative scrutiny to take three months, and then around a further three months of parliamentary time will be required for a Bill to go through Parliament. We have to be mindful that with an election pending there will be significantly less parliamentary time available between now and the end of July than there would normally be, so I do not think that an earlier date than 31 December is the right approach. However, in putting this forward, I reassure the Committee on two points. First, we will ensure that serious pre-legislative scrutiny will occur. Secondly, we will progress legislation in a timely fashion, though I am mindful of the strictures of the noble Lord, Lord King of Bridgwater, that I must not seek to write a Queen's Speech in advance of the appropriate time.
	Noble Lords should bear in mind that 31 December is the latest point at which the existing regime will expire. If we are able to legislate more quickly than that, a new regime approved by Parliament with full consideration will come into force earlier. But I believe that the deadline of 31 December ensures that we will have all the time that is required, in a reasonably practicable manner, to complete parliamentary processes.

Lord Pannick: Why would pre-legislative scrutiny take three months? It would not take your Lordships' Constitution Committee or the Joint Committee on Human Rights anything like three months to address the important and, I agree, difficult questions that are raised.

Lord Myners: Pre-legislative scrutiny requires us to consult widely with a broad group of people who will be affected by this legislation. We have every reason to believe that, given the speed of representation that has already been made and some of the important points that have been raised by your Lordships today, there are critical and complex issues here that require serious scrutiny.
	To pick up an observation from the noble Lord, Lord Elystan-Morgan, we should be careful not to put an unnecessary straitjacket on Parliament that would be inappropriate given the complexity of the issues and the need to give them close scrutiny. If we had put an earlier date on the sunset clause such as the end of April or the end of May, the predominant view expressed in the House is that we would be allowing inadequate time for scrutiny and that that ran the risk of legislation that had not been critically examined. Parliament would wish to see us strike a balance. We would like to be able to complete the process before 31 December and, with a fair wind, that is possible. The noble Lord, Lord Elystan-Morgan, is right in observing that we should not impose such a tight straitjacket that we would not permit Parliament sufficient time to carry out the necessary review.

Lord Mackay of Clashfern: My Lords, it is worth mentioning that, ordinarily, if the pre-legislative scrutiny were to be done by a Joint Committee of both Houses, which might be appropriate here, that committee would normally call for evidence from people who had an interest in the matter-of whom there will be a great number in this case, although one or two of them may have disappeared. Pre-legislative scrutiny given by the Constitution Committee and the Human Rights Committee is rather different. It is certainly pre-legislative scrutiny, but the idea is that a Joint Committee would be very comprehensive and include the kind of consultation to which the Minister referred. If one is to do this exercise properly-and it is quite a difficult exercise-and finish it before 31 December, the parliamentary system will have to work very well.

Baroness Noakes: My Lords, what are the Government's intentions towards pre-legislative scrutiny? Do they intend to seek to set up a Joint Committee of both Houses to commence the work of scrutinising the draft legislation and when do they intend to do that? Alternatively, do they intend to start a consultation process with a public call for people to comment on the command paper that they issued last week? The command paper is rather curious. It is a wrapper around a draft Bill with Explanatory Notes and an impact statement, but without a foreword or any kind of explanation of why it is there. The Minister has referred to pre-legislative scrutiny, but it would be helpful to know what the Government's intentions are.

Lord Myners: My Lords, I understand that whether a Joint Committee is established is a matter for both Houses to determine, but I can certainly see merit in a Joint Committee. I would expect others to express views on that matter. I have already indicated my expectation that there should be a call for evidence and an expression of views and opinions and that that should be wide and comprehensive because of the delicate and sensitive matters involved. We are trying to strike the right balance between protecting national interests from the threat of terrorism while at the same time not encroaching on the civil liberties of individuals. Parliament needs to show itself to be open to a wide range of opinions and questions.

Baroness Noakes: I am sorry to press the Minister, but he said that he expected that this would happen. Surely the Government have plans. They have come in with a proposal for a sunset date of the end of December. What plans do the Government have to consult? As I pointed out, the command paper containing the draft legislation was issued in a sort of void last week and did not constitute the start of the consultation process and did not call for evidence. What plans do the Government have and when will they start?

Lord Myners: I have already indicated to the Committee that my expectation is that we will issue a call for evidence and set up a comprehensive pre-legislative scrutiny process. Whether that matter is conducted by a Joint Committee of both Houses is for both Houses to determine not the Government.

Baroness Hamwee: My Lords, the noble Baroness and others are not persuaded by my July date and I am not persuaded by the April date. The practical reason that the noble Baroness is suggesting is that one should get to the full Bill, if I may call it that, by the end of April and then return to it at leisure afterwards. The reality is that there would be no appetite for that. We know the pressures on parliamentary time. It is unlikely that either House, having got fuller legislation in place, would see it as a priority to review it so quickly.
	The term "straitjacket" was used. This is a matter on which we should impose a straitjacket on ourselves. The position now is unsatisfactory and how we deal with that and the conditions we impose on ourselves should not be for our convenience, but with a view to getting the best outcome, which involves many factors.
	Of course, the Minister referred to balancing the needs of national security and we did not vote against the Second Reading of the Bill. I welcome his acknowledgement of the human rights matters. It is difficult to believe that it is necessary to give three months to pre-legislative scrutiny. Organisations with a particular interest in the bigger Bill are already well appraised of the issues. I asked a representative from one yesterday about the time needed-I will not say which one it was because I do not want to pin it down without prior warning-but the message that I got back was that this is something they could do very quickly indeed. The July date would have been a balance. However, I would not like to hear an excuse at a later date that insufficient time had been given to looking at what would be an extremely important Bill. On a more practical note, I can see that I am on a loser and so I beg leave to withdraw the amendment.
	Amendment 1 withdrawn.
	Amendment 1A not moved.
	Amendment 2
	 Moved by Lord Thomas of Gresford
	2: Clause 1, page 1, line 4, after "following" insert "purported"

Lord Thomas of Gresford: In moving this amendment, I will speak also to Amendments 3, 4, 5, 6, and 7 that are grouped with it. Amendment 2 refers to the decision of the Supreme Court on 27 January that struck down the 2006 order. It was confirmed by the later decision of the Supreme Court that it had no discretion to suspend the order. It had the effect of declaring that the 2006 order had never possessed legal force and that it had been void from the start. It was therefore never an order in any legal sense. Your Lordships will recall this was a matter that was discussed at Second Reading this afternoon. It is only a "purported" order and the amendment corrects the description of the orders in the context of this Bill. It has the effect of protecting the clause from the argument-as, for example, in the Anisminic case-that a legal nullity cannot be used to give rise to further obligations.
	The Bill currently gives the provisions of the orders retrospective effect and cloaks them in the authority of the United Nations Act 1946 if they derive their force from that Act. Amendment 3 removes the restrospectivity and the reference to the 1946 Act altogether so that the orders would now, instead, have their own freestanding legal force as primary legislation.
	Amendment 5 is consequential. Its effect is to preserve a consequence of the current lines of the Bill which is that the provisions of the Counter-Terrorism Act 2008-about special procedures to preserve security in proceedings about financial restrictions-will apply to asset-freezing proceedings under the Bill.
	Amendment 6 goes with Amendments 4 and 7. Its effect is to carry over the effect of any current purported directions of the Treasury, which the Supreme Court has said have no legal effect, into new interim orders as established by the new clause. It would mean that the Treasury would have one month from the passage of the Bill to apply to the High Court for full orders. The amendment also preserves the effect of current licences granted by the Treasury. Amendment 12 is consequential to that, so that the current orders would continue under this proposal.
	Amendment 7 is the important amendment which inserts a new clause into the Bill. The effect of that new clause is to alter the process by which a person becomes subject to the asset-freezing regime, to change the length of time that a person can be subject to the regime on the basis of reasonable suspicion alone, and, importantly, to introduce an appeal mechanism for the licensing process. Under the order as it currently stands, the Treasury, acting on the basis of reasonable suspicion alone and without any prior supervision by the courts, may subject a person to the full asset-freezing regime. There is no appeal and no limit to the number of times a direction, which lasts for a year, may be renewed. Your Lordships heard all these criticisms at Second Reading this afternoon.
	The amendment and the new clause replace the existing process with one under which the Treasury applies to the High Court for an order to impose the asset-freezing regime on an individual. The court may impose an order on the basis not of reasonable suspicion but on the basis of findings of fact that the person concerned-the individual against whom the order is directed-is connected with terrorism and that the order is necessary to protect the public from terrorism. Reasonable suspicion would not be enough for such a full order, which would last up to a year and which may be renewed on further application from the Treasury as long as the findings of fact remain valid.
	For emergency situations, this draft clause provides that the Treasury would be able to apply to the High Court for an interim order on the basis of reasonable suspicion alone, but that interim order would last for a month only. In that month the Treasury would be expected to bring proceedings for the full order in the High Court which would have control of the proceedings. The interim order could be extended beyond a month but only to cover the time taken for the subsequent proceedings for a full order, or for any relevant criminal trial or other proceedings. The purpose is to replace the reasonable suspicion test with a finding of fact that the individual is connected with terrorism.
	The 2009 order introduced a licensing system under which the rules that forbid giving support to the subject of the asset-freezing regime might be relaxed for certain purposes. The amendment to Article 17 of the 2009 order maintains that licensing system but does allow an appeal to the High Court both for the refusal of a licence and for the refusal to vary a licence. Your Lordships will recall that the judgment of the Supreme Court criticised many things, but one of them was the lack of any provision for appeal. The purpose of these amendments is to recast the power of making orders, to make those orders ultimately based upon fact, to provide a temporary solution for up to a month, to make sure that it is the High Court and not the Treasury which controls the making of the orders, and to provide for the right of appeal. I beg to move.

Baroness Noakes: My Lords, the noble Lord, Lord Thomas, has made a good case for the amendments in this group. I will not go through the amendments in detail or comment on the particular drafting of the amendments because I sympathise with all the points that he has made. As I explained at Second Reading today, we do not regard this Bill as one to which substantive amendments should be made. Essentially the fast-track process does not lend itself to this kind of amendment. Our normal process is a deliberative one, with pause for thought after Second Reading and again after Committee. I do not know about the Liberal Democrat Benches, but I do not feel as if I have paused for thought at all today.
	If the Government had introduced a Bill along the lines of the draft issued last week, we would have had a better opportunity to reflect on these amendments. If we were going to try to perfect the 2009 order, there would be other amendments that we would think worth considering. We will not be able to support these amendments today. However, is saying that, I agree that they raise valid points and I hope that we shall have a proper opportunity to consider them in the context of a full Bill at some point.

Lord Elystan-Morgan: My Lords, the noble Lord, Lord Thomas of Gresford, makes a number of points with which I have very considerable sympathy. However, I say with the utmost respect that Amendments 2 and 3 may well be unnecessary. It is not a case of saying that these provisions shall have the effect as if they were primary legislation-they are primary legislation. Although there is a history that leads us back to the realms of various elements of delegated legislation, that has no real relevance to these provisions at this time.
	I have immense respect, regard and admiration for the noble Lord, Lord Myners, in every context, particularly in this one. If he had been spending or mis-spending his life for the past 30 years in the courts, he could not have made a better fist of it than he did at Second Reading today. However, he said that we were interpreting UN Security Council Resolution 1373 as including a situation where a person not only was proven to have taken part in terrorism but was indeed suspected of that. That is an utterly logical and understandable attitude to take, but technically very probably a wrong one for this reason. Although that is the historical narrative of what has brought this crisis to your Lordships' House today, with regard to the actual legislation that we are considering, the United Nations resolution is totally irrelevant. If there never was such a thing as the United Nations, the legislation would stand or fall on its own feet. The fact that you may in legislation refer to or quote from poetry, from the Bible or from anywhere else makes no difference. Once you have incorporated the words in an Act of Parliament, it is the Act of Parliament under the sovereignty of Parliament that counts, not its origin.
	It is often said that Parliament can do whatever it likes except make a man a woman and a woman a man. I am not sure that that restriction applies any longer. Be that as it may, Parliament has total sovereignty. It is in the exercise of that sovereignty that we are entitled to do this. We are referring to the wording of what were once delegated powers and incorporating those powers in primary legislation. It is the primary legislation that will be judged from now on. On that basis, much as I sympathise with the views expressed by the noble Lord, Lord Thomas of Gresford, on the other matters, I respectfully submit that Amendments 2 and 3 are not necessary.

Lord Boyd of Duncansby: My Lords, perhaps I could ask the noble Lord about Amendment 7. The Bill extends to Scotland, but I do not see any reference to the jurisdiction of the Scottish courts. Perhaps the noble Lord can tell us what role, if any, the Scottish courts might play, and what happens to somebody in Scotland whose assets are frozen.

Lord Thomas of Gresford: The noble Lord makes a valid point. Fortunately we have a Report stage at which all these matters can be verified.

Lord Pannick: My Lords, I share the concern of the noble Baroness, Lady Noakes, about whether today, in debating the Bill, we can address the important and difficult issue of the substantive conditions that must be satisfied before an asset-freezing order takes effect. I am also concerned that the amendment moved by the noble Lord, Lord Thomas of Gresford, seeks to confine the substantive order to circumstances where there is a finding of fact that the individual is connected with terrorism. There is a strong case for maintaining such a power in circumstances where the individual is reasonably believed to be associated with terrorism. It is a much stricter test than the test merely of reasonable suspicion that the Government wish to maintain.

Lord Mackay of Clashfern: First, I will make a small technical point. Clause 1(2)(d) refers to the Terrorism (United Nations Measures) Order 2009. Under Amendment 2, it is to be called "purported". When it comes to later amendments, it has suddenly dropped its "purported" and has become-what should I say?-fully fledged.
	There is a Scottish point that must be dealt with. We are in grave difficulty when we attempt to alter the test that was used in the orders that have been quashed, because it is hard for us now to take the view that the Government's protection is more than is necessary in the circumstances, with which they are much more familiar than any of us can be. I would not wish to take the risk of reducing the ambit of the orders without a full discussion, for which we have neither the time nor the opportunity. This is meant effectively to put in place the orders that have been quashed or are liable to be quashed. Therefore, to alter them would be beyond the present exercise, and beyond the scope of the time that we have allotted for the purpose, in order that the Bill might become law later this evening or early tomorrow morning.

Baroness Scotland of Asthal: My Lords, I respectfully agree with the comments made by the noble and learned Lord, Lord Mackay. The debate that we have just had is illuminating because it identifies how complex and different the views expressed on this issue are. It is clear that the amendments proposed by the noble Lord seek to bring about a fundamental change in the nature of the terrorist asset-freezing regime that we have. I make no comment for the moment on whether they are soundly based: I simply say that that is their purpose. We will not be able to deal with them adequately-I would almost say "at all"-this evening. Justice should be done to them, because we know from the Supreme Court decision that it wanted Parliament to have an opportunity for have a mature, reasoned and seasoned debate. That is what we have decided to do in relation to the management of the Bill.
	We disagree with the noble Lord's premise. The amendments that he seeks to pursue concern two issues. The first advocates putting asset freezing in primary legislation rather than Orders in Council, in the belief that this is necessary to restore access to Convention rights. The second removes the asset-freezing decision from the Executive and gives it to the judiciary. That is a very significant change. Therefore, I agree with what was said by all other noble Lords: the point was made by the noble Baroness Lady Noakes, the noble Lord, Lord Elystan-Morgan, and, in effect, by my noble and learned friend Lord Boyd, who pointed to the fact that we have not dealt with Scotland. When you stand at the Dispatch Box, that is always something that you fail to do at your peril. Salient points were also made by the noble Lord, Lord Pannick. All the points recognised that the matter is complex, difficult and will take time to discuss. Notwithstanding the huge power of your Lordships' Committee, I do not think any of us believes that we will be able to do it tonight.
	Perhaps I may say, with the consent of the Committee, that although I assure the noble Lord that I have many pages of explanation about why there are difficulties in what he proposes, I will save the Committee from that delicious torment and ask that we postpone it for another day.

Lord Thomas of Gresford: My Lords, I refuse to accept any criticism on the drafting or principles because the Bill was published only a couple of days ago, which has not given anybody a chance to look at it in depth. I accept the criticisms about Scotland: I spend much of my time in Scotland, so I am very concerned about Scottish legislation. I am also concerned by the point made by the noble Lord, Lord Pannick, about whether the test should be reasonable belief or a stronger finding of fact by the court. Obviously these matters should be pursued when the full Bill is brought before us, and I shall do that on another day, as the noble and learned Baroness invited me to do. For the moment, I beg leave to withdraw the amendment.
	Amendment 2 withdrawn.
	Amendments 3 to 6 not moved.
	Amendment 6A
	 Moved by Baroness Noakes
	6A: Page 1, line 17, leave out "and further directions may be made"

Baroness Noakes: I shall speak also to Amendment 6C. These amendments concern the further directions which the Government might make under the orders made under the United Nations Act. I fully accept that the Government may need to make directions that further persons are designated for the purposes of asset freezing between the time that this Bill receives Royal Assent and the time when it is replaced by substantive primary legislation. I also accept that the Government may need to renew or vary a direction. Therefore, I accept the thrust of Clause 1(3)(a).
	However, my concern is that, as drafted, it appears that further directions can be made under all the orders listed in Clause 1(2). My amendment deletes the reference to "further directions" in subsection (3)(a). Amendment 6C inserts a new subsection into Clause 1 which specifically says that:
	"Further directions may be made under",
	the 2009 order only but not under the 2001 and 2006 orders.
	The 2009 order is far from perfect; we had a small taste of that on the previous group of amendments. The advantage of the 2009 order is that it is an improved version of the earlier orders: the 2001 and 2006 orders allow the Treasury to designate someone who may reasonably be suspected to be or may be a terrorist. That was removed following the Court of Appeal judgment and does not appear in the 2009 order. The 2009 order made other beneficial changes.
	I am aware that the 2006 order repealed part of the 2001 order and that the 2009 order repealed part of the 2006 order. It may well be that my amendment is unnecessary because no further directions can be given under the earlier orders. However, I am not absolutely sure of the position, and that is why I have tabled the amendments. If directions can be given only under the 2009 order, can the Minister explain why subsection (3)(a) is drafted as it is? It refers to all the orders. I beg to move.

Baroness Hamwee: Perhaps I could ask a question which follows on from what the noble Baroness, Lady Noakes, has asked about the earlier orders. In what circumstances would the Government want to rely on the earlier orders?

Baroness Scotland of Asthal: I can clear this up. The noble Baroness, Lady Noakes, says that she seeks, by these amendments, to provide that any future directions can be made only under the terrorism order 2009. We agree that any future directions will have to come under that order and, therefore, we do not think it is necessary.
	Article 26 of the 2009 order revokes the 2006 order, with savings only for current directions, and similar provisions in the 2006 order revoke the 2001 order. Therefore the 2009 order power is the only live direction-making power which the Treasury can legitimately use. I think that is the clarity which the noble Baroness wanted. The drafting makes that clear once you know that that is the only power. We think that matter has been covered. I thank the noble Baroness, first, for being so quick on the uptake and noticing that there might be a lacuna and, secondly, for helping us to try to close it. I can reassure her that there is nothing there to worry about.

Baroness Noakes: I am entirely satisfied with what the noble and learned Baroness has said. I beg leave to withdraw the amendment.
	Amendment 6A withdrawn.
	Amendment 6B
	 Moved by Baroness Noakes
	6B: Page 1, line 23, at end insert "after the date that this Act comes into force"

Baroness Noakes: Amendment 6B adds the words,
	"after the date that this Act comes into force",
	at the end of Clause 1(3)(c). This deals with the degree of retrospection involved in this Bill, particularly in relation to criminal offences created by orders. That was raised during Second Reading by the noble Lord, Lord Wallace of Tankerness. I had already prepared this amendment for tabling and in view of the timing of this Committee stage I cannot check exactly what was said in Hansardso I apologise if I go over old ground, but I thought it wise to ensure that there is clarity on this point.
	The effect of my amendment is to ensure that prohibitions and offences in the orders can apply only in relation to any acts after the Act comes into force. I know I do not need to recite to the House why retrospectivity in relation to criminal offences would be unacceptable.
	It has been put to me by Justice, which has provided very helpful briefing, as other noble Lords have said, that the effect of the retrospective deeming contained in Clause 1(2), which subsection (3) expands on, is that the prohibitions referred to in paragraph (c) are similarly retrospective. I can also see that subsection (1) refers only to the period after the Act comes into force. If there is any scintilla of doubt or ambiguity about a matter as important as retrospectivity for criminal purposes, we must be quite clear in our resolve to remove that ambiguity. I hope that the Minister agrees with that. I beg to move.

Baroness Scotland of Asthal: I can reassure the noble Baroness that the amendment is unnecessary as Clause 1 already provides for this. The Bill does not provide for criminal liability for any acts or omissions before the Act comes into force. For the period between 4 February and the commencement of the Bill, failure to comply with the asset freeze will not be a criminal offence. The Bill makes that clear in Clause 2(5)(b). In any case, Clause 1 sets out clearly that the provisions of the Bill have effect only when the Bill has received Royal Assent. Therefore, I invite the noble Baroness to withdraw her amendment. I am very happy to have been able to clear that up.

Baroness Noakes: I thank the noble and learned Baroness for that. I thought that was what I heard during Second Reading this afternoon but, as I explained, I thought it wise to have another go to be absolutely clear. I beg leave to withdraw the amendment.
	Amendment 6B withdrawn.
	Amendment 6C not moved.
	Amendment 6D
	 Moved by Baroness Hamwee
	6D: Leave out Clause 1 and insert the following new Clause-
	"Amendments to the Anti-Terrorism, Crime and Security Act 2001
	(1) Section 4 of the Anti-Terrorism, Crime and Security Act 2001 is amended as follows.
	(2) In subsection (1), for "two conditions are" substitute "condition in subsection (2) is".
	(3) In subsection (2), omit "first".
	(4) Omit subsections (3) and (4)."

Baroness Hamwee: This amendment would replace the first clause of the Bill with a provision applying the relevant section of the Anti-terrorism, Crime and Security Act 2001 to the situation which this Bill addresses. We tabled this amendment because the Government said that the power in Section 4 of the 2001 Act to make freezing orders does not apply because the object of the order must be a foreign resident or a foreign country. It seemed to us that rather than the slightly crab-wise approach of this legislation, one could simply make it apply by leaving out the conditions relating to foreign residents and so on.
	The 2001 Act has some important attributes. Some judicial oversight is already provided by the Act but it is perhaps limited in light of the discussions we have had already on the Bill. Under Section 63 of the Counter-Terrorism Act 2008, application to the High Court or to the Court of Session can be made in connection with any decision of the Treasury and in connection with its functions under the 2001 Act. In parenthesis, I ask the Minister-I have given notice of this and it is important-whether she can tell the Committee whether Section 63 of the Counter-Terrorism Act will apply to the Bill we are considering now when it is enacted. Section 63(1) refers to the UN terrorism orders, to Part 2 of the 2001 Act and to a schedule to the 2008 Act.
	Under one paragraph of the schedule to the 2001 Act, regarding orders which can be applied, the Treasury must, if asked, give the reasons for including an individual in the order. Individuals also have a right to seek compensation. There are also provisions regarding licences-that is, bluntly, arrangements for funds to be made available to allow individuals to live. There are even provisions in the schedule that would, I think, benefit the Treasury. It includes in primary legislation some things that might be a matter of practice. We might be told that those provisions already apply, but this will make it certain. What is most important, in the light of the judgment that has led to our proceedings today, the 2001 Act has had the benefit of parliamentary process. I beg to move.

Baroness Noakes: My Lords, I accept what the noble Baroness, Lady Hamwee, has said about the advantages of the 2001 Act compared with using the orders. On Second Reading, I asked why the 2001 Act was not used for terrorism purposes, if that is what it was put there for, and why it could not be used for this purpose. That said, I have some problems with the noble Baroness's amendment. Although it might set up a new regime going forward, I do not see how it copes with all those who are currently covered by the designations that have already been made under the existing orders. It seems to create a very severe problem. It may well be that, as a permanent solution to the problem, the noble Baroness's amendment has the core of a way forward, but in the context of dealing with the temporary problem caused by the Supreme Court's judgment, it seems to create more problems than it solves.

Lord Pannick: I respectfully agree with the noble Baroness's observations. Parliamentary approval was given to Section 4 of the 2001 Act, as I understand it, in relation primarily to foreign activities. I am concerned about the possible implications-I emphasise possible implications-of generally extending the scope of Section 4 so that it would apply to all domestic activities. That may have unfortunate implications and I would need some assurance that that was not the case before I could support this amendment.

Baroness Scotland of Asthal: My Lords, once again we have had an interesting debate that shows clearly why we need to do more work on these issues. We are very grateful to the noble Baroness, Lady Hamwee, for raising these issues. They foreshadow the sort of issues that we will have to think about and discuss in due course.
	The Counter-Terrorism Act does apply to this Bill. The 2009 order is within the definition of the UN orders to which Section 63 of the Counter-Terrorism Act applies. I hope that clarifies that point. I certainly reassure the noble Baroness that all the comments made will be taken into consideration when we come to look at the final, full Bill. It gives us an indication of the sort of issues that are troubling Members of the House, and we will want to address those in due course. I hope the noble Baroness will feel that, having properly raised these issues, she is able to withdraw the amendment.

Baroness Hamwee: My Lords, this is not the first time in the proceedings on this Bill that that point has been made. We seem not to have had a proper answer from the Government. I take seriously the points that other noble Lords have made, but this amendment was tabled so that the Government could tell us something rather more substantive than, "It is because I say it is". I am not happy with such a response. We should be given more than that slightly Humpty Dumpty reply.

Baroness Scotland of Asthal: I am very happy to give the noble Baroness a short and pithy response if it assists her. However, I think that both the noble Baroness, Lady Noakes, and the noble Lord, Lord Pannick, have already identified some of the difficulties that the noble Baroness's proposal raises. To deal with those proposals properly would take some little time.
	The provisions that the noble Baroness proposes would require the threat to have been from a Government or a person outside the United Kingdom. This would specifically get round the reason why the Act could not be used for domestic terrorism. However, even if it worked, it would mean designations on a reasonable belief basis, and we do not believe that that would be the right standard. Parliament would have to review the information relied on for a designation. It would require both Houses to approve designation within 28 days although many of our cases will have been charged or conducted on the basis of intelligence. In either instance, we could not disclose information of that sort.
	There are very many issues. I say to the noble Baroness, with the greatest respect and understanding, that we are all trying to do the very best we can. However, the decision that was made by the Supreme Court was to enable Parliament to have sufficient time to discuss and debate these issues with a sense of decorum and propriety. I know that that is what the noble Baroness wants, and I know that that is what every person who has spoken in this debate wants. It is simply impossible for us to do justice to the issue which the noble Baroness wishes to raise in such a truncated process. I therefore invite her to think very carefully about the response that she has had both from the noble Lord, Lord Pannick, and the noble Baroness, Lady Noakes.

Baroness Hamwee: My Lords, the amendment does not seek to truncate the parliamentary process. We have already dealt with the sunset provision and my amendment would not alter that. It would merely put in place a different interim regime.
	I did not sit through the proceedings on the 2001 legislation, but I find it difficult to believe that the Government allowed Parliament to ignore the kind of matters that the noble and learned Baroness has just raised. As regards freezing assets in respect of those who are subject to Section 4, surely that must have been considered and debated, and the Government must have been clear in their mind that all the corners had been covered.
	I think that I shall test the opinion of the Committee.

Division on Amendment 6D
	Contents 48; Not-Contents 162.
	Amendment 6D disagreed.

Clause 1 agreed.
	Amendment 7 not moved.
	Clause 2 : Protection of things done or omitted in interim period
	Debate on whether Clause 2 should stand part of the Bill.

Baroness Noakes: My Lords, I have not given notice that I wish to speak on whether Clause 2 should stand part of the Bill, but I have one small query that I hope the noble and learned Baroness will be able to answer. In Clause 2(2), we deal with things,
	"done or omitted by a person other than the Treasury that would be valid, lawful or effectual if",
	three orders had been effectively made. During the passage of the Bill in the other place, the Government tabled an amendment to Clause 1(2) to add additional orders relating to the Channel Islands, the Isle of Man and overseas territories. Why are the Government not extending the protection of Clause 2 to those three orders that they added yesterday in the other place? They allow temporary validity to be extended to them. Why are they handled separately?

Baroness Scotland of Asthal: I have to confess to the noble Baroness that having had intimidate dealings with the Bill only today, I am not able to give her an immediate answer, save to say-I am thinking off the top of my head at the moment-that I do not think it is necessary. Clause 2 and its provisions are necessary to ensure that there is no gap in the UK's asset freezing regime caused by the quashing of the terrorism orders. The clause validates actions taken by any person, except the Treasury-a very important exception-to maintain existing asset freezes during the period between the court quashing the terrorism order on 4 February and this Bill receiving Royal Assent by providing that the orders will be treated as validly made, should their actions be questioned. It does not, and cannot, put them in the position where they have a legal obligation to freeze assets for this period.
	My belief is that since the orders are focused on what has happened here, it is unlikely that any freezes have been made in the Channel Islands or the other places, so there is no need for retrospective cover. Therefore, retrospective cover for the banks is not required. Having thought about where we are, that is my construction. If I am wrong on any of that-I do not believe that I am-can I write to the noble Baroness and clarify the position? I do not think I am wrong because, to the best of my recollection, I saw no papers in relation to the Channel Islands or the other places that have been mentioned. That is confirmed by the note I have received. If it is wrong on mature reflection and correction, I will let the noble Baroness know.

Baroness Noakes: My Lords, I thank the noble and learned Baroness for that. Writing to me may not be a particularly good remedy for this particular circumstance. Can she check at the conclusion of this Committee stage and, if necessary, bring forward an amendment at Third Reading?

Baroness Scotland of Asthal: My Lords, I am very happy to do that. I am looking at the Box and I think my civil servants are confident that what I have told the Committee is right. I do not think that we are likely to get greater confirmation between now and Report. We have used our best endeavours to give the noble Baroness an accurate response.

Baroness Hamwee: The noble Baroness is right that a letter is inappropriate in these circumstances. I am sure that if the Government find that they should have referred to the other orders that the eagle-eyed noble Baroness spotted, they will have to do more than just write a letter about it. I am talking a little bit in case any further intelligence reaches the Attorney-General. It is entirely likely that in the circumstances we are debating, the Channel Islands, at any rate, would have featured in what has gone on over the past few years. If any correction needs to be made, as well as further order, at least a Statement to the House would be required .

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for her elegant filibustering. I shall read the note out: "There are no existing freezes in the Isle of Man, the Channel Islands or the overseas territories, so no retrospective cover is needed. You were right". So there we are: Her Majesty's Attorney-General was correct.
	Clause 2 agreed.
	Amendment 8
	 Moved by Baroness Hamwee
	8: After Clause 2, insert the following new Clause-
	"Report on operation of Act
	(1) Within 28 days of the date of the coming into force of this Act, the Treasury must lay before Parliament a report about the exercise prior to that date of the powers conferred or purported to be conferred on him by the Orders referred to in section 1(2).
	(2) Within 28 days after the end of each reporting period, the Treasury must lay before Parliament a report about the exercise during that period of the powers conferred on them by this Act.
	(3) The reporting periods are-
	(a) the period beginning with the day on which this Act comes into force and ending with the last day of the third month during any part of which this Act has been in force;
	(b) each succeeding period of three months.
	(4) Each report shall include information regarding designations made, licences granted (whether general or to a category of persons or to a particular person), and proceedings taken for an offence".

Baroness Hamwee: I shall speak also to Amendment 9. The noble Baroness, Lady Noakes, has Amendment 11A in this group. My amendments are lifted directly from the draft full Bill, which is being published in the form of the Command Paper. They deal with reports to Parliament and independent review. If the Government think that these issues are appropriate for the fuller legislation and are measures that should be applied in future, why not now? The first of the amendments, Amendment eight, requires a report from the Treasury to Parliament on the exercise of the powers within 28 days and then on a three-monthly basis. The clause in the draft Bill refers to a report. That might bear a little expansion, and I have therefore added subsection (4), which gives some idea of what might be included in such a report. That is information regarding designations made, licences granted and proceedings taken for an offence. The noble Baroness's Amendment 11A requires a monthly report. My instinctive reaction is that that is a bit often and a bit of a heavy imposition, but I look forward to her arguments.
	Amendment 9, on the independent review of the operation of the Act, says that the Treasury must appoint somebody to undertake reviews of the operation, and the periods for review would align with the periods in my Amendment 8. Other than that, it is lifted very directly from the draft Bill. We are in the difficult position that we all know about, and I heard the noble Baroness, Lady Noakes, say-I paraphrase-that we should not be too ambitious with this Bill in trying to import detail. Nevertheless, it seems that these are safeguards which the Government have seen fit to propose, and which we might well have been debating today, and there is no reason why they should not apply to the interim regime which we are now considering. I beg to move.

Baroness Noakes: My Lords, I have Amendment 11A in this group and, as the noble Baroness, Lady Hamwee, explained, my amendment is similar to Amendment 8, which the noble Baroness has just moved.
	I take as my starting point that this Bill is far from perfect. It legitimises three orders with the barest minimum of parliamentary scrutiny. We have had no real opportunity to consider the substance of the orders, despite the valiant efforts of those on the Liberal Democrat Benches in seeking to get some of those issues debated. We are resigned to an imperfect emergency legislative solution to the problem of the Supreme Court's decision, and we have to await a proper Bill to replace it, but I do not believe that means that Parliament's involvement in the Bill should end.
	In the draft legislation contained in the Command Paper issued last week, as the noble Baroness, Lady Hamwee, pointed out, Clause 24 sets out the requirement for a quarterly report. A quarterly report, or indeed any report, to Parliament cannot remedy deficiencies in the Act itself, but it is a useful way of reminding Parliament about legislation which can be used to interfere with the rights and liberties of individuals. It is also a useful way of reminding the Executive that they are accountable to Parliament.
	My Amendment 11A mirrors Clause 24, somewhat more exactly than the amendment of the noble Baroness, Lady Hamwee, with the one exception that she has already pointed out; namely, that it calls for a monthly rather than a quarterly report. The reason for this is simple. This temporary provisions Bill can last only until the end of the year, and will, I hope, be gone sometime before that. In that circumstance, we believe that while the imposition of a monthly report might add a bit to the workload of the Treasury, that is a tiny matter when weighed against the civil liberties issues on the other side of the balance, because we are keeping in place a Bill which many of us regard as imperfect.
	Amendment 8, in the name of the noble Baroness, Lady Hamwee, goes a little beyond the draft clause, as she explained, and I have no problem with the changes that the Liberal Democrats propose. I hope that I have explained why, even within the context of her amendment, a monthly frequency would be better. I hope that the Government can see that these are reasonable amendments, in the context of this Bill, which has an unsatisfactory legislative solution to a problem. The amendment would not upset the scheme of the emergency Bill, but it would go some way to putting Parliament back where it should be, which is reviewing the practical impact of legislation on the lives of individuals. I hope that the Government will seriously consider accepting either my amendment or that of the noble Baroness, Lady Hamwee, or be prepared to come back later this evening with a version of their own.
	I find it difficult to support the other amendment in this group. I do not believe that this Bill, when it is an Act, will be in force long enough to make a review of the Act a worthwhile proposition, so I do not think that would be a sensible use of resources, going forward.

Lord Pannick: I support the amendments requiring regular reports to Parliament for the reasons given by the noble Baronesses, Lady Hamwee and Lady Noakes. These amendments will introduce vital safeguards. This Committee has recognised that this temporary Bill may be on the statute book for another 10 months, despite its imperfections. The Committee has been told that pre-legislative scrutiny may take three months. The temporary measures will inevitably have a very adverse effect on individuals, including those in respect of whom there may be no more than a reasonable suspicion that they may be associated with terrorism.
	In those circumstances, it is vital, in order to ensure the protection of the interests of those individuals, and to ensure that this House can perform its vital function of holding the Executive to account, and being informed about what approach this House should take to the substantive legislation when it comes forward, that we see regular reports on the operation of this Bill. The Minister referred at Second Reading, and has referred earlier, to the need for a fair balance. I cannot see what can be weighed in the balance against such a requirement, other than the very minor consideration of administrative convenience.

Lord Myners: My Lords, Amendment 8 requires quarterly reporting by the Treasury to Parliament on the exercise of the powers conferred on it by the Bill. Amendment 11A would require monthly reporting. We recognise the point of these Amendments. The Government understand and support the need to ensure accountability and transparency in the use of our powers. However, with the greatest respect, the amendments are not required. The Treasury already lays a written report before Parliament on the operation of the UK's asset-freezing regime. This report is made on a quarterly basis, which we believe is the right period for such a report, and it includes more than the noble Baroness's amendment requires. As well as information on designations made and licences granted, our-currently quarterly-report details the total assets frozen and the number of case reviews and delistings each quarter. We would be happy to add proceedings taken for an offence to the report, as suggested by the noble Baroness. The next report is due shortly. I am not sure that we could add that information for that report, but I certainly hope so for subsequent reports. I therefore ask that these amendments be withdrawn.
	The purpose of Amendment 9 is to appoint an independent person to review the operation of the Bill three months after it comes into force and every three months thereafter. We have included a clause in the longer Terrorist Asset-Freezing Bill, which is available in draft on the Treasury website, to the effect that an independent person should be appointed to review the operation of the Bill nine months from the day it is passed and then annually. However, an independent review is not required for the operation of this temporary Bill. It is a temporary measure, which has a fixed sunset provision. In the course of giving pre-legislative scrutiny to the longer Bill, attention may well be given to the current orders and how they are implemented, but this does not require a formal independent review of this temporary Bill, a point that was made very eloquently in the contribution from the noble Baroness, Lady Noakes. I therefore ask that this amendment is also withdrawn.

Baroness Noakes: My Lords, the Minister was very interesting on the subject of the Treasury's quarterly report. Will he explain why the Government's own draft legislation to replace this temporary Bill includes a specific requirement to table a report? If we were considering the draft Bill and I had tabled an amendment to Clause 24, would the Minister not say that the Treasury already does a quarterly report on asset-freezing? I am a bit mystified as to why the draft Bill has a specific requirement to table a report, which seems like a good idea, and why it should not be applied to the Bill that we are now considering.

Lord Myners: Quarterly reporting is appropriate; it happens once every 90 days and keeps Parliament fully informed. We have already indicated that the total number of actions that are taken is relatively modest, and we believe that a quarterly report is appropriate for the temporary Bill, and for the longer Bill when it is considered by Parliament.

Baroness Noakes: Perhaps I could put the question in a different way. Is there a current statutory requirement for the Treasury's quarterly report? If there is, how will it apply to the Bill that we are being asked to make law today?

Lord Mackay of Clashfern: It occurs to me that the previous orders may well contain a statutory obligation to report, although I have not seen it. If there is, the draft Bill would put it in anyway because it would be new, but my noble friend says that there is no such requirement. Perhaps the Minister knows the answer to that.

Lord Myners: I suspect that the noble and learned Lord's analysis is correct. We put this into the new Bill because it is permanent legislation and it therefore makes sense to write it in, but you do not need a statutory requirement for a temporary Bill.

Baroness Noakes: My Lords, it is desirable for there to be a report on the things that have been done under the previous orders and that are done under the authority of this Bill. Will the Minister clarify the requirement on the Treasury to make that report? If there was a clear requirement on the Government to make a report, there would be no problem. We are trying to ensure that there is a report. Is the Minister saying simply, "Trust me, I'm the Government", or is he saying, "I have to do it, therefore it's all right"?

Lord Myners: I would never want the noble Baroness to believe that I relied solely on, "Trust me, I'm the Government", but a commitment that is given to Parliament is serious and is not given lightly, and I hope that Parliament will take comfort from the fact that the Attorney-General has been sitting alongside me on the Front Bench during this debate and has in no way pulled my jacket to tell me that it is not appropriate for me to make that commitment.
	To avoid doubt, I should say that it is very important that these disclosures are made. I am a member of Liberty, and I have very strong beliefs in justice and in individual freedom. In presenting these proposals to Parliament, only after very careful consideration do I weigh the needs of national security against the risks of encroaching on individual liberty. One of the ways in which Parliament monitors that is through regular, comprehensive and detailed reporting. That remains an essential part of our commitment in support of this temporary legislation.

The Archbishop of York: Will the Minister answer the question asked by the noble and learned Lord, Lord Mackay? Did the orders that have now become defunct because of the action of the Supreme Court contain the power to report? If this temporary Bill takes those orders into account, there is no fuss; after all, it has a sunset clause. I can understand the Minister saying that the permanent Bill should have it, but will he answer the noble and learned Lord's question, because I have not heard the answer?

Lord Myners: I thank the right reverend Prelate for his contribution.

Noble Lords: The most reverend Primate.

Lord Myners: I am sorry; I stand most corrected. We do not currently have a statutory requirement, but we made a commitment to Parliament in December 2006, we have reported to Parliament on a quarterly basis since, and we intend to continue to do so.

Lord Pannick: I must press the Minister on this matter, because I am puzzled by his position. Many statutes impose obligations on the Secretary of State to report to Parliament, particularly in the context of terrorism, and they do so because it is thought important to put such a duty into the Bill, given the importance of the subject matter. A Minister could always say, "That's unnecessary because I am giving a commitment to Parliament that we will do it anyway", but does the Minister not accept that, in the context of this very sensitive Bill and given the circumstances in which it comes before the House, it is particularly important that such an obligation is put into the Bill?

Lord Myners: I hope noble Lords will take great comfort from the fact that we have been reporting to Parliament since December 2006, that the reporting has been as frequent as we indicated it would be at that time, and that we provide more detail than the noble Baroness has suggested in her amendment. I have made it very clear that, for the time that this temporary legislation is in place, we intend not only to continue to report quarterly but to augment the reports by providing an additional line of information, as the noble Baroness proposes. I hope Parliament will draw comfort from my very clear and unqualified statement as a Minister in support of our commitment to report properly and fully to Parliament for such time as this temporary legislation remains in effect.

Baroness Noakes: Before the noble Baroness, Lady Hamwee, decides what to do with her amendment, perhaps I may say that we completely understand that the Minister wishes to assure us that he will report. However, it would cost the Government very little to stand behind the good faith that they say they have used in relation to using the order-making power in the past and their wish for us to help them to deal with the problem that has been created by the Supreme Court. It would not cost the Government much but it would give some people comfort to see them taking seriously the representations that have been made. This is a peculiar Bill and, in many respects, it is not satisfactory. We would like a special reporting requirement attached to it. It would last for only this year because the Bill will go at the end of 2010. We think that it would be an act of good faith on the part of the Government if the Minister took this proposal away and brought it back later this evening. Thus, neither of us would need to press the point now.

Baroness Hamwee: My Lords, this has taken a turn which I did not quite expect. As regards Amendment 9, I take the point that with a sunset clause it might be a bit heavy-handed to seek an independent review. It could be useful but perhaps it is a bit much in the circumstances. However, with regard to reporting, about which far better arguments have been made than those that I advanced in moving the amendment, we have heard assurances about accountability and transparency, and the arrangements which the Government have in place. I do not for a moment doubt the Minister, who is a good chap.

Noble Lords: Hear, hear.

Baroness Hamwee: I hope that the "hear, hear" will be recorded in Hansard. This proposal seems a very proper, sensible and small thing to require. We have not heard from the Minister that he will come back with a clause to cover reporting. I gave people some exercise a few minutes ago and felt that I had justified the Government in keeping their troops here. We should now put the Minister out of his agony and I will seek the opinion of the House.

Division on Amendment 8
	Contents 54; Not-Contents 95.
	Amendment 8 disagreed.

Amendment 9 not moved.
	Amendment 10
	 Moved by Baroness Hamwee
	10: After Clause 2, insert the following new Clause-
	"Reasonable domestic expenses
	(1) The Terrorism (United Nations Measures) Order 2009 is amended as follows.
	(2) In article 17(3) at end insert "subject to article 17(3A)"
	(3) After article 17(3) insert a new paragraph-
	"(3A) The Treasury shall by licence disapply such prohibitions as are necessary to ensure that the income of a designated person shall not by any action taken under this Order fall below what is necessary for meeting the reasonable domestic needs of the designated person and his family"."

Baroness Hamwee: My Lords, I shall speak also to Amendment 11. These are my last two amendments in Committee.
	The first amendment provides that the licence to be given by the Treasury will ensure that the reasonable domestic needs of the designated person and his family can be met. Since I tabled the amendment, I have seen the Statement made by the Minister on 5 February, and published afterwards, which deals at some length with the licence regime as it has been applied and as the Government will continue to apply it, and which gives assurances that in addition to the basic expenses listed-the basic humanitarian needs which I was amused to see included, at the top of the list, taxes; taxes might be a humanitarian matter to some, but they might not be so regarded by the designated person-other expenses will be allowed.
	The wording of my amendment was taken direct from the Insolvency Act. It seemed to me that there were parallels between this situation and bankruptcy, where the bankrupt is allowed enough leeway and enough income to ensure that his reasonable domestic provisions can be met. The Minister's Statement talks of taking an approach so that designated persons have access to their income and other property in so far as it can be arranged,
	"without giving rise to risk of terrorist finance".
	It seemed to me that that was something of a circular argument. The Statement also says that the controls are those,
	"necessary to protect against terrorist finance risks."-[Official Report, 5/2/10; col. WS36-37.]
	However, as that is the basis for the designation and for the very heart of the order, I am not quite clear about its purpose within the licensing arrangements. One needs to start at the other end-not the fact of the designation, but protection for the families in particular. My main concern is that there is no legislative minimum and no possibility of challenge. That is why I have tabled this amendment.
	I tabled the second amendment, on legal representation, because I was shocked to discover that financial contributions to legal proceedings, or indeed to representation for a designated person in proceedings, are in themselves offences. I understand that the role of the Justices in the recent Supreme Court case was to act as intervener, because that was all that they could do. It seems to me to be a basic provision that legal services should be allowed to be available. I beg to move Amendment 10.

Baroness Scotland of Asthal: My Lords, I assure the noble Baroness that the Government share the concerns that she has expressed, both in making sure that those who may be affected have the necessary wherewithal to meet their living expenses and, indeed, in relation to legal representation. We agree that it is essential that the impact of the asset-freezing regime on designated persons and their families is proportionate and to ensure that they have full access to legal representation and funds to meet their everyday needs. However, we believe that the noble Baroness's amendments are unnecessary, since the Government already operate a licensing regime precisely to ensure that these needs are met, taking into account the specific circumstances of each case. She will know that that may vary and that what may be an absolute necessity for one family may be an unnecessary matter for another. For the moment, the licensing regime is able to recalibrate those issues directly in relation to the individual needs of the family concerned. I welcome the opportunity to make that clear to the House and to put those comments on the record.
	I hope the noble Baroness will be pleased to know that the Treasury already takes measures to ensure that all reasonable expenses can be met through the operation of the active licensing regime. For example, it is already our policy not to restrict a family's access to benefits due to them. Currently, all families are receiving their full entitlement for benefits; for this reason, we do not believe that the amendment achieves anything not already achieved by the operation of the licensing regime. However, I absolutely understand that the noble Baroness was framing this to get an assurance on how it works.
	On the amendment that deals with legal representation, I hope that I have made it clear that I completely agree with the noble Baroness that it is essential that persons subject to an asset freeze have unrestricted access to legal services. However, it is already the practice of the Treasury to issue a licence for legal aid immediately when someone is designated; that ensures that legal representation is provided immediately. The amendment is therefore in that regard unnecessary, as I hope the noble Baroness will agree. The Government consider it inappropriate to exclude all legal services from the prohibitions, for example when legal expenses are met by release of frozen funds. It may be necessary to conduct some checks to ensure that the funds are applied for the stated purpose. For those reasons, I hope the noble Baroness will understand that although I am resisting her amendments, I affirm her concern about both issues.

Baroness Hamwee: My Lords, I am grateful for that. It is clear from the Supreme Court judgment that it has taken the Government some time to arrive at the licensing arrangements that they now apply. The Minister mentioned benefits; we know from the judgment that that was not always the case. The argument again is that the amendments are unnecessary because this is what we do. The assurance that I hoped for and that I think I heard was not just that this is what we do now but that this is what we will be doing. The Attorney-General is nodding.

Baroness Scotland of Asthal: My Lords, I am happy to affirm that. The licensing provisions and process that operated under the old scheme will continue until such time as we have an opportunity to consider if there will be a need for any change in any new Bill that might come forward. The scheme in being will continue.

Baroness Hamwee: That, as I said, is the scheme described at some length in the Minister's Statement on 5 February. On that basis, I beg leave to withdraw the amendment.
	Amendment 10 withdrawn.
	Amendments 11 and 11A not moved.
	Clause 3 agreed.
	In the Title:
	Amendment 12 not moved.
	House resumed.
	Bill reported without amendment.

Equality Bill

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	2nd Report from the Delegated Powers Committee
	3rd Report from the Delegated Powers Committee

Committee (6th Day) (Continued)

Clause 157 agreed.
	Clause 158 : Positive action: recruitment and promotion
	Amendment 116
	 Moved by Lord Hunt of Wirral
	116: Clause 158, page 100, line 28, leave out "reasonably thinks" and insert "can demonstrate"

Lord Hunt of Wirral: My Lords, I will use my best endeavours to make my remarks as brief as possible in view of the need to make progress.
	This group of amendments refers to two different clauses. Amendment 116 has been tabled to Clause 158, which deals with positive action, recruitment and promotion. The others have been tabled to Clause 196, which is about harmonisation, and enables a Minister of the Crown to amend by order the Act which will result from this Bill, and the Equality Act 2006, in order to ensure consistency-both of provision and with European law. I will not go into the detail of this clause at this point. We have tabled amendments which will allow discussion later.
	This group of amendments relates especially to the use of "thinks" rather than "can demonstrate". We have been having detailed discussions on the semantics of this Bill-around the definitions of "reasonable" and "proportionate"-and I am sure noble Lords will also have an opinion on the use of "thinks" in these clauses. Our main contention is that, given that the powers provided by these clauses are quite wide, it is sensible to have a less subjective test for when the provisions can be used. If the test were to be made more objective, the person or Minister responsible could be properly held to account for their actions. A test based on a subjective opinion, however, will be much more difficult to judge.
	In another place, the Minister dismissed these concerns, stating that this,
	"is not a "thinking" process which can just come to someone over breakfast".-[Official Report, Commons, Equality Bill Committee, 30/6/09; col. 613.]
	I am sure that for most people it would not be. However, there is nothing in this Bill or the Explanatory Notes which makes that clear. Can the Minister please explain what the "thinking" process would include? We obviously expect and hope that the Minister making decisions regarding harmonisation, and the person making decisions about the use of positive action, would do so with the utmost regard for best practice. However, the use of "thinks" seems to belie the serious implications of the use of these powers. Does the Minister agree that, given the strength of these powers, it would be beneficial if the test for their use were made stricter?
	In another place, the Minister commented that it would be unproductive if an employer were to be put off using the clause relating to positive action if the test were raised and he had, for example, to find an expensive consultant to provide some statistical analysis to demonstrate that the use of the powers was justified. As I pointed out a little earlier, we on these Benches support the provisions for positive action as long as that does not give way to positive discrimination. However, I wonder whether our amendment would really have as damaging an impact on the use of the clause as the Minister in another place feared would happen. Does the Minister agree that most employers would be able to demonstrate, first, that persons who shared a protected characteristic suffer a disadvantage connected to that characteristic or that, secondly, participation in an activity by persons who share a protected characteristic is disproportionately low? One would not need to spend a lot of money to have a consultant find statistical evidence; instead, it would just raise the bar for the thinking process.
	This would mean that it was clear in the Bill that this is an important decision that requires reasoned, objective thinking and an evidential basis. I am sure that most employers would be doing that anyway. The aim of the change would be to catch only those who were not, to provide them with clear instruction about when is the appropriate time to use these broad powers, and to make sure that there is sufficient justification. That would not be off-putting to employers, as surely that sort of thinking is what the Government mean to encourage when they use "thinks". If not, can the Minister inform the Committee what the word is supposed to denote?
	The use of the word "thinks" in these two clauses raises further concerns when it is noted that in Clause 158 the person must "reasonably" think, but that in Clause 196 the Minister does not even have the limitation of "reasonably" in order to use the powers contained there only on a thought. Given that the Minister in another place specified that those thoughts could not just occur over the breakfast table, can the noble Baroness account for the fact that "reasonably" has not been included here? I feel sure that the Minister will reassure us that all decisions are expected to be reasonable. If that is the case, why is that word included in Clause 158? Surely, the noble Baroness cannot be claiming that Ministers are intrinsically more reasonable than other employers?
	Again, we advocate the use of "can demonstrate", with the intention that the Minister should have to be able to demonstrate the objective thought process and to be held accountable for the decisions made. I do not feel that the change that these amendments would effect would have too great an impact on a process that the Government are assuming would occur anyway. The noble Baroness will correct me if I am wrong-indeed, I suspect that she may wish to do so-but we on these Benches think that it would be sensible if the need for an objective and justifiable decision was laid out in the Bill rather than using a word which, to many, denotes a more subjective decision without the need for demonstrable evidence. I beg to move.

Lord Lester of Herne Hill: My Lords, this is not a taxing or a penal statute; this is a remedial statute, and it is to be approached in a liberal way. The principle of proportionality is a two-stage process. The first stage is that one must show that there is a legitimate aim; the second is to show that the means employed are reasonably necessary to achieve the aim. One does not need to raise the bar or to treat this as a coercive provision to be strictly construed because it is very important-the most reverend Primate has already indicated this-that the gateway into using these voluntary measures of affirmative positive action to overcome disadvantage and the effects of past discrimination is showing that it is a reasonable view. The word "reasonable" has an objective meaning. It means that you cannot take leave of your senses. Reason has to be applied.
	As regards the term "reasonably thinks", the first stage, which is the easy stage, is to show that there is a legitimate aim. As I said earlier, the legitimate aim is spelt out in the Bill. If one were to raise the bar, it would completely stultify the effect of these voluntary provisions. I have said before that when Margaret Thatcher was Prime Minister and introduced in 1989 far more radical and coercive measures that still apply, have worked for 70 per cent of the workforce and have reduced discrimination against Protestants and Catholics in Northern Ireland, there was no approach of this kind, which, frankly, is inappropriate in a remedial statute. I should have thought that if the Conservatives win the election and govern the country, they would welcome the fact that these positive-action provisions will be taken up voluntarily by the private and public sectors. We can then begin to deal with patterns and practices of unjust discrimination in a more positive way, avoiding the need for unnecessary individual litigation. I cannot put it as well as the most reverend Primate who spoke from a common-sense, non-lawyer point of view, but it is absolutely vital that we keep the threshold as it is.

Baroness Turner of Camden: My Lords, I cannot really see what advantage one would get by replacing "reasonably thinks" with "can demonstrate". How does one set about demonstrating that there is a disadvantage in a work situation? I should have thought that it was reasonable to take on board this wording where an individual responsible for appointments or whatever in a work situation would reasonably think. I cannot see anything wrong with that, but to wait until you can demonstrate something is much more difficult. I much prefer the wording proposed by the noble Lord, Lord Lester, of "proportionate means". That is very good. Therefore, I see no advantage at all in replacing "reasonably thinks" with "can demonstrate"-quite the contrary.

Baroness Thornton: My Lords, this group of amendments relates to two different clauses-158 and 196, so I shall address the relevant amendments separately. Amendment 116 would make it a requirement for employers to rely on the statistical evidence to support the use of positive action measures to tackle disadvantage or underrepresentation within an organisation's workforce. This same amendment was tabled in another place. The Government resist this amendment. The Bill uses the formulation "reasonably thinks", so it already requires a decision-maker to act in a reasonable way when deciding whether to use positive action measures. We believe that "reasonably" introduces an element of objectivity and raises the threshold for decision-makers. It means that, when making the decision, the employer must apply logical and rational principles and a failure to do so would give rise to a challenge. Therefore, any use of these measures must be backed by some form of evidence or justification that supports the belief that people who share a particular characteristic are disadvantaged or underrepresented; otherwise, such a decision would be open to challenge, so clearly the employer cannot simply opt to use positive action measures on a whim.
	Clause 158 sets out the circumstances in which employers could apply these positive action measures and the action that is permitted. Clause 158(4) also ensures that employers would not be able to abuse the provisions by ensuring that any action taken must always be a proportionate way of accomplishing the intended outcome. As has already been mentioned by noble Lords, using the formulation of "can demonstrate", as proposed in the amendment, would create a higher threshold based on undisputable statistical evidence, which we consider would have a chilling effect on the willingness of employers to use positive action measures. I am not saying that it is devastating, but that it is chilling. It would discourage employers from using the positive action measures, even when they had identified the need to tackle disadvantage or underrepresentation -the gateway mentioned by the noble Lord, Lord Lester, and the right reverend Prelate.
	Amendments 130 to 133 will be discussed in a later group, so I will limit my remarks. They would limit ministerial flexibility in deciding whether use of the harmonisation power in Clause 196 is appropriate and, if so, the timing and extent of its use.
	The provision grants Equality Ministers of the future the flexibility they need in order to keep the Bill, when enacted, a coherent and harmonised piece of legislation in the years ahead. I can offer reassurance to noble Lords, should they require it, that use of this clause would not be at the whim of a Minister dreaming something up over breakfast. While the initial trigger on its use would result from ministerial consideration following advice from officials, there are a number of constraints on the power's use and in-built requirements to explain and demonstrate why it would need to be deployed in any given case. The word "thinks" in Clause 196(1)(a) concerns the question of whether the Minister considers the relevant criteria are met and the Minister is therefore bound by public law principles to act reasonably.
	The harmonisation provision, particularly the important procedural safeguards that we propose, will be debated more fully when we reach Clause 196, but I remind the House that this power can be used only where a community obligation is to be implemented through the Equality Acts. There will be little by way of subjectivity on this point. It will be clear that action is needed when regulations are brought forward to implement, for example, a directive under Section 2(2) of the European Communities Act 1972. With regard to consultation, it is inherent in such an exercise that the Government will need to demonstrate why the power needs to be used in those particular circumstances.
	In addition, in response to concerns of the Delegated Powers and Regulatory Reform Committee, the Government are proposing amendments that would add further checks on its use-for example, by requiring further consultation if the initial consultation led to changes to the proposals and an increase in the frequency of reporting to Parliament on the power's use is proposed. We will explain that when we reach Clause 196.
	I conclude by highlighting that all regulations intended to be made under this power must be laid before and debated by both Houses of Parliament. As with the consultation, the Minster will by definition need to demonstrate to Parliament that regulations under Section 2(2) of the 1972 Act trigger a need to retain harmony in the law through use of this power, and that any consequential adjustments are necessary. A new clause proposed by the Government after Clause 196 also requires that an explanatory document be laid before Parliament along with the draft regulations describing the results of the consultation, among other things. Ample accountability is built into this provision and it is important to understand that particular pieces of language taken in isolation do not provide the complete picture. I urge the noble Lord to withdraw the amendment.

Lord Hunt of Wirral: My Lords, I thank the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Lester of Herne Hill, for their important contributions. I also thank the Minister for her reassurance. The concept of Ministers dreaming something up over breakfast is chilling, but perhaps we will leave it at that. She has given me the reassurance that I sought so I beg leave to withdraw the amendment.
	Amendment 116 withdrawn.
	Amendments 117 and 118 not moved.
	Amendment 118A
	 Moved by Baroness Thornton
	118A: Clause 158, page 101, line 3, at end insert ", and
	( ) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2)"
	Amendment 118A agreed.
	Clause 158, as amended, agreed.
	Amendments 119 and 119A not moved.
	Clause 159 agreed.
	Amendment 120
	 Moved by Lord Hunt of Wirral
	120: After Clause 159, insert the following new Clause-
	"Private hire vehicle accessibility regulations
	(1) The Secretary of State may make regulations (in this section referred to as "private hire vehicle accessibility regulations") for securing that it is possible for disabled persons-
	(a) to get into and out of private hire vehicles in safety;
	(b) to do so while in wheelchairs;
	(c) to travel in private hire vehicles in safety and reasonable comfort;
	(d) to do so while in wheelchairs.
	(2) The regulations may, in particular, require a regulated private hire vehicle to conform with provision as to-
	(a) the size of a door opening for the use of passengers;
	(b) the floor area of the passenger compartment;
	(c) the amount of headroom in the passenger compartment;
	(d) the fitting of restraining devices designed to ensure the stability of a wheelchair while the private hire vehicle is moving.
	(3) The regulations may also-
	(a) require the driver of a regulated private hire vehicle which is plying for hire, or which has been hired, to comply with provisions as to the carrying of ramps of other devices designed to facilitate the loading and unloading of wheelchairs;
	(b) require the driver of a regulated private hire vehicle in which a disabled person is being carried while in a wheelchair to comply with provisions as to the position in which the wheelchair is to be secured.
	(4) The driver of a regulated private hire vehicle which is plying for hire or has been hired commits an offence-
	(a) by failing to comply with a requirement of the regulations, or
	(b) if the private hire vehicle fails to conform with any provision of the regulations with which it is required to conform.
	(5) A person guilty of an offence under subsection (4) is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
	(6) In this section-
	"passenger compartment" has such meaning as is specified in private hire vehicle accessibility regulations;
	"regulated private hire vehicle" means a private hire vehicle to which private hire accessibility regulations are expressed to apply."

Lord Hunt of Wirral: My Lords, we tabled Amendment 120 because we wanted to raise the issue of accessibility of private hire vehicles for people with disability. The intention is to probe this area and discover what changes could be made, what changes should be made and what changes the Government hope to make to ensure that private hire vehicles are accessible to people with disability.
	We therefore tabled an amendment to come after Clause 159. This contains the order-making power which would allow the Secretary of State to make regulations to ensure that disabled people could get into and out of private hire vehicles in safety, get into and out of private hire vehicles in wheelchairs and travel in private hire vehicles in safety and comfort. These reasonably far-reaching regulations could also specify the size of door openings for passengers, the floor area and the amount of headroom in the passenger compartment and the fitting of restraining devices to prevent a wheelchair from moving while the vehicle was in motion.
	Will the Minister let us know whether any research has been carried out to show how many private hire vehicles are currently accessible for people with disability? Is she able to provide any figures which would demonstrate the disadvantage currently experienced by people with disability, thereby pointing to the need for regulation-making powers? We on these Benches are concerned to ensure that, where necessary, changes are made.
	Throughout the passage of this Bill, we have tried to underline the point that, where it is necessary to ensure equality, people with disability can be treated in a more favourable way than people who are not disabled. We are pleased to see the Government's letter of 26 January, which stated that they were "minded" to accept Amendment 120A tabled by the noble Baroness, Lady Wilkins. This amendment would seek to ensure in a new clause that suitable numbers of wheelchair-accessible taxis operate throughout England and Wales.
	We welcome the intention of this clause, but I ask for clarification on a couple of points. The amendments appear to give further powers to the Secretary of State, thus removing them from the local authorities. Can the noble Baroness explain why this is necessary if the local authorities will already be subject to the public sector equality duty? Is this a symptom of the vague, and so far undefined, nature of the duty, making it necessary to give powers to the Secretary of State, or is it an indication that the Government already doubt the way this duty will work?
	I hope that in her response the noble Baroness will also indicate what consultation and discussion have taken place with the Local Government Association and taxi organisations about this matter, and what views were expressed. I also wonder whether she might be able to address some more specific questions to do with the capability of a vehicle to accommodate a wheelchair. We have been informed that no wheelchair is crash-tested for a situation where it is rear-facing. Despite this, most private hire vehicles can accommodate only rear-facing wheelchairs.
	Is the noble Baroness aware that this is the case, and does she agree that it seems unsuitable and that perhaps changes need to be made? We are also informed that no council arranging school transport carries out checks to see whether wheelchairs are crash-tested and certified. Can the noble Baroness inform the Committee whether such checks or similar are required to be carried out, and does she not think that there is a case for calling for such safety measures? I look forward to the Minister's response. I beg to move.

Baroness Wilkins: My Lords, I shall speak to Amendment 120A in my name, which concerns the lack of accessible taxis available to disabled passengers. I welcome the support of the noble Lord, Lord Hunt. The proposed new clause would mean that taxi-licensing authorities which have a policy of controlling taxi numbers could not refuse to grant a taxi licence for a wheelchair-accessible vehicle if fewer than a prescribed proportion of taxis in the district were wheelchair-accessible. At present, a taxi-licensing authority outside London can refuse to grant a licence if it is satisfied that there is no significant unmet need for taxi services in the district. As a result, a licensing authority with a quantity-control policy and relatively few or no accessible taxis in its fleet can refuse applications for wheelchair-accessible vehicles. Noble Lords can imagine what that means for a wheelchair user who needs a taxi when, for instance, they arrive in the area by train. They are stranded. One must also think what it means for those living in the area when they need to get to an urgent appointment or visit friends and have a social life.
	The new clause would mean that a licensing authority could not refuse to grant a licence for any wheelchair-accessible vehicle if it had fewer than a prescribed proportion of accessible taxis in the district. The proportion of accessible taxis would be prescribed by the Secretary of State following economic assessment and consultation. The provision of accessible transport is essential for equality of opportunity. I hope that the Minister will accept the amendment.

Lord Wallace of Tankerness: My Lords, I welcome the debate initiated by the noble Lord, Lord Hunt, and in particular the proposed new clause spoken to by the noble Baroness, Lady Wilkins. Her last point, that accessibility to transport is crucial for equality of opportunity, sums it up. We on these Benches are happy to support her amendment.

Baroness Howe of Idlicote: My Lords, I speak briefly to support the amendment, not least because, on Sunday evening, a disabled friend came to visit. A licensed taxi came to pick him up and could not take him, so there was a delay of more than an hour while we waited for a suitable taxi. Clearly this is an important area and we need to know more about it.

The Archbishop of York: My Lords, when the noble Baroness, Lady Campbell of Surbiton, moved her amendment last time on the question of need, the right reverend Prelate the Bishop of Liverpool spoke out clearly in the debate. In the General Synod of the Church of England, we received a report from a number of disabled people, and access was one of the greatest areas of concern. The amendment tabled by the noble Baroness, Lady Wilkins, would address that concern, and I support it, because it strikes the right balance. Access is absolutely critical.

Baroness Thornton: My Lords, I will speak to government Amendments 121, 122 and 123, before turning to Amendment 120A and finally to Amendment 120, moved by the noble Lord, Lord Hunt.
	Amendments 121, 122 and 123 relate to the ability of taxi-licensing authorities to maintain lists of wheelchair-accessible taxis and private hire vehicles that operate in their area. Drivers of such designated vehicles are required to perform the duties in Clause 163 to carry and assist disabled passengers who use wheelchairs. Clause 165 enables Scottish licensing authorities to maintain lists only of wheelchair-accessible taxis and private hire vehicles that hold a special licence to operate a local bus service. They will be unable to list wheelchair-accessible taxis and private hire vehicles that operate under conventional licences. This would mean that the drivers of vehicles with a conventional licence would not be obliged to carry out the duties in Clause 163, even though their vehicle was capable of carrying disabled passengers who use wheelchairs.
	The amendments will align the position in Scotland to that in England and Wales. This will give greater assurance to disabled people that, when they require a wheelchair-accessible taxi or private hire vehicle, the driver will assist them to enter and exit the vehicle and, if they decide to remain in the wheelchair while travelling in the vehicle, will ensure that the wheelchair is secure and safe and that they travel in reasonable comfort.
	Amendment 120A is in the name of my noble friend Lady Wilkins. Taxi licensing and provision is a complicated area, and steps to improve access to taxis for disabled people are always welcome. It is unacceptable that a licensing authority which controls taxi numbers can routinely refuse applications for wheelchair-accessible taxis when it has very few wheelchair-accessible taxis in the district or, indeed, none at all. This new clause provides an ideal means of enhancing accessible taxi provision in these areas.
	I thank my noble friend Lady Wilkins for her amendment, which is compatible with the aims of the Bill and has the effect of improving accessibility for disabled people. In making any regulations under this clause, the Government would, of course, consult interested parties before reaching a decision on the proportion of taxis which must be wheelchair accessible and on the specifications of the wheelchair which taxis must be capable of accommodating. Therefore, the Government will accept Amendment 120A.
	I now turn to Amendment 120 and the legitimate points raised by the noble Lord, Lord Hunt. I have already mentioned the issues of safety and the appropriate provision to be provided in taxis and licensed vehicles. The noble Lord raised a very reasonable point about safety and taxis. This is not in my notes but it should be. I have already mentioned that checks on safety are included and would be included in the regulations that arise out of my noble friend's point. I will undertake to ensure that the issue is properly addressed in the regulations and guidance which arise out of these provisions. I shall also write to the noble Lord and the Committee on this matter. From the wisdom that is offered to me from time to time, I can say that vehicles used for taxis are tested in accordance with European safety regulations and those requirements include crash testing. They must also be designed to accommodate wheelchairs safely in rear-facing orientation. We have taken that on board.
	The noble Lord's amendment is a probing amendment on this subject, and its principal objective would be to require all private hire vehicles to be wheelchair accessible. That would be incredibly burdensome to the private hire industry. Looking at the range of private hire vehicles which are available, we need information to be available to disabled people about what is in their area so that we can move forward in an orderly fashion. To say that all private hire vehicles have to provide for wheelchair access may be a step too far. However, the private hire vehicle trade is fundamentally different from the taxi trade: taxis can ply for hire, stand in ranks and be hailed in the street, whereas private hire vehicles must be booked in advance through a licensed operator.
	I should point out that, as the amendment is drafted, it could be seen to be technically defective as it refers to private hire vehicles plying for hire and of course the noble Lord will be aware that that is illegal. We think that converting or replacing all private hire vehicles would be so costly to the trade that it would no doubt force many operators out of business. Given the important role that private hire vehicles play in providing public transport, I am sure the noble Lord would not want to go in that direction.
	However, there is scope for using legislation to enhance the service which disabled people receive from private hire vehicles. In addition to the general duty not to discriminate, drivers of private hire vehicles designated as wheelchair-accessible vehicles will, under Clause 163, be required to assist their wheelchair passengers. I hope that explains why we do not agree with Amendment 120 and why we would like to accept Amendment 120A.

Lord Hunt of Wirral: First, I am very grateful to the noble Baroness. I hasten to reassure her that it was, as I pointed out, only a probing amendment. We are well aware of the importance of the private hire vehicle industry, which plays a critical part in making the necessary provision available. I am very grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Wilkins.
	I too am very pleased indeed that the Government are minded to accept Amendment 120A. So far as the other comments of the noble Baroness are concerned, I think that was a very helpful outline. I warmly welcome her undertaking and in all the circumstances beg leave to withdraw the amendment.
	Amendment 120 withdrawn.
	Amendment 120A
	 Moved by Baroness Wilkins
	120A: After Clause 159, insert the following new Clause-
	"Control of numbers of licensed taxis: exception
	(1) This section applies if-
	(a) an application for a licence in respect of a vehicle is made under section 37 of the Town Police Clauses Act 1847,
	(b) it is possible for a disabled person-
	(i) to get into and out of the vehicle in safety,
	(ii) to travel in the vehicle in safety and reasonable comfort, and
	(iii) to do the things mentioned in sub-paragraphs (i) and (ii) while in a wheelchair of a size specified in regulations made by the Secretary of State, and
	(c) the proportion of taxis licensed in respect of the area to which the licence would (if granted) apply that conform to the requirement in paragraph (b) is less than the proportion that is specified in regulations made by the Secretary of State.
	(2) Section 16 of the Transport Act 1985 (which modifies the provisions of the Town Police Clauses Act 1847 about hackney carriages to allow a licence to ply for hire to be refused in order to limit the number of licensed carriages) does not apply in relation to the vehicle; and those provisions of the Town Police Clauses Act 1847 are to have effect subject to this section.
	(3) In section 16 of the Transport Act 1985, after "shall" insert "(subject to section (Control of numbers of licensed taxis: exception) of the Equality Act 2010)"."
	Amendment 120A agreed.
	Clauses 160 to 164 agreed.
	Clause 165: Lists of wheelchair-accessible vehicles
	Amendments 121 to 123
	 Moved by Baroness Royall of Blaisdon
	121: Clause 165, page 106, line 3, leave out "in England and Wales"
	122: Clause 165, page 106, line 6, leave out subsection (4)
	123: Clause 165, page 106, line 9, leave out "subsections (3) and (4)" and insert "subsection (3)"
	Amendments 121 to 123 agreed.
	Clause 165, as amended, agreed.
	Clauses 166 to 184 agreed.
	Schedule 20 agreed.
	Clauses 185 to 187 agreed.
	Schedule 21 agreed.
	Clauses 188 and 189 agreed.
	Schedule 22: Statutory provisions
	Amendments 124 and 125 not moved.
	Schedule 22 agreed.
	Clauses 190 to 194 agreed.
	Schedule 23: General exceptions
	Amendments 125A and 125B not moved.
	Amendment 125C
	 Moved by Lord Hunt of Wirral
	125C: Schedule 23, page 217, line 39, at end insert-
	"Landlord: possession of premises
	(1) A landlord does not contravene this Act so far as relating to disability by doing anything to obtain possession of the premises from the tenant pursuant to the provisions of section 21 (obtaining possession from an assured shorthold tenant) of Part 1 of Schedule 2 to the Housing Act 1988 (mandatory grounds for possession).
	(2) In this paragraph "landlord" and "tenant" have the same meanings as they have in the Housing Act 1988."

Lord Hunt of Wirral: My Lords, this amendment refers to the effect of the decision of the House of Lords in the Lewisham v Malcolm case, in which-your Lordships may recall it-landlords seeking possession from tenants with disability, particularly those suffering from a mental disability, did not need to justify their decision to take possession proceedings. In the light of that case, I lay out very clearly that our position is firmly in support of the new provisions that address the hole left by this judgment. We want to ensure that people with disability receive the right level of protection from disability-related discrimination. We are fully supportive of the alterations that need to be made to the letter of the law to return to what it was mistakenly thought that the spirit of the law already encapsulated.
	We ask, however, what has happened so far as consultation is concerned, in particular between the Equality and Human Rights Commission and the landlord associations. We on these Benches believe that reversing the Malcolm decision is necessary and right. Nevertheless, we would want to ensure that this was done in such a way as to make certain that there were no loopholes whereby a landlord could not get rid of a problem tenant simply because they claimed to have a disability that was not in fact the case.
	The effect of the reversal of the Malcolm decision will be that the mandatory grounds of possession-Section 8 of the Housing Act 1988 for a rent arrears of two months and Section 21 for shorthold tenants who have reached the end of their tenancy-will mean that landlords still have to justify possession. However, landlords are rightly concerned that in cases of indirect discrimination, the grounds of possession will become discretionary. This could become important if, for example, a tenant blamed their anti-social behaviour on some form of mental illness which, for the purposes of the Act, could be construed as a disability. This would indeed have important ramifications for people with disability because it might mean that landlords are more reluctant to allow genuinely disabled people to move into rented accommodation.
	Will the noble Baroness inform the House what discussions have been had with landlord associations here and what reassurances she can offer them? Furthermore, will she inform the House how much evidence of proof would be needed to justify obtaining an order for possession against a person with disability in a situation of indirect discrimination? What form can that proof take? Moreover, does the Minister accept that in practice it will be very difficult for landlords to recoup the costs of defending claims of possession, even where the claims are won?
	I have posed a lot of questions. If the Minister cannot answer them tonight, perhaps she might do so before Report. We are fully supportive of the changes which would see the Malcolm decision reversed, but there are other important considerations to take into account and other key players to protect. I beg to move.

Baroness Thornton: My Lords, Amendment 125C would set out in the Bill a provision that ensured that the duty of the courts in England and Wales to grant possession to a landlord in certain cases under the Housing Act 1988 was not hampered by the disability provisions of the Bill. I appreciate that the amendment has been tabled to explore the avenues explained by the noble Lord.
	The noble Lord appears to have concerns that the disability provisions which we debated earlier in Committee might prevent landlords taking action under the auspices of the Housing Act. Noble Lords will recall that similar issues have arisen in the past, such as when a disabled tenant was evicted by Lewisham Council because of a breach of his tenancy agreement.
	This Committee is not considering landlord and tenant legislation, I am relieved to say, which can be complex. I am sure noble Lords will forgive me if I do not delve too deeply into details of the Act referenced in the amendment. However, as the noble Lord was asking me about the consultation process, I recalled that when in 2008 I was involved in the discussions on building this Bill and the Malcolm case was concurrent, the DWP conducted a public consultation late in that year. I cannot give the noble Lord chapter and verse on who took part in that consultation in terms of landlord organisations, but I undertake to find out and let him know. However, I know that the consultation took place and informed how we proceeded with the Bill.
	I appreciate that this amendment is meant to clarify the relationship between the disability provisions of this Bill and housing legislation, and that that relationship has caused some confusion in the courts. However, the difficulty in those cases was that the scope of the landlord to justify his treatment of the tenant under the DDA was very limited. One of the changes the Bill has made to the disability provisions is to provide a defence of objective justification to discrimination arising from disability and to include disability within the scope of the indirect discrimination provisions, which are also subject to an objective justification defence.
	The courts now have much greater discretion to consider the facts of each case and to decide whether the landlord's treatment of the tenant is justified, which might cover some of the points raised by the noble Lord and his concerns about what is reasonable for a landlord to consider. We believe that this allows for greater fairness than a blanket prohibition on disability considerations being taken into account in some possession proceedings. I hope with that, and my undertaking to write to the noble Lord if I have not covered all the points he raised, he will withdraw his amendment.

Lord Hunt of Wirral: I shall press the Minister a little further. The Minister may well think that this would be an appropriate case for guidance from the Equality and Human Rights Commission. I understand that there is no clarity about whether we will get guidance. Will that guidance be available and, if so, on what timescale? I do not expect that she will have the answer immediately, but it is an area where the fears of a number of bodies have not yet been met by clear guidance from the commission.

Lord Lester of Herne Hill: I hope what I shall say will be helpful. It seems to me that where a tenant behaves badly-does not pay the rent or destroys the premises or whatever-and when he is served with notice to quit says, "It's because I have a disability", the question would be of fact, of causation, in the individual case. What was the real reason for the behaviour so far as direct discrimination is concerned? If the tenant behaved badly, there would be no objective justification, and he could be removed. It does not seem to me that there is a need for much guidance because I hope what I have just said is plain and obvious. It all boils down to the facts of the individual case and whether it is really attributable to disability or to misconduct.

Lord Hunt of Wirral: That was a helpful intervention from the noble Lord, Lord Lester of Herne Hill, because I am seeking to tease out whether it is an objective justification to expect rent and the ability to evict for non-payment. That is the area. If what the noble Lord said is correct, this has been a worthwhile period in the consideration of the Bill. I understand that the commission has been asked to provide guidance, and a little information on the timescale in which it will be available would be helpful.

Baroness Thornton: Draft guidance has been published and is on the website. There is a commitment to consult on the issue to do with premises. I cannot guarantee that that is covered in the guidance currently on the website.

Lord Elton: We are assuming that disability is a permanent condition, but I do not know that that is the case. If a person is a tenant and, after a while, is unable to pay the rent as a result of a newly incurred disability, is that not a case where some guidance would be needed?

Baroness Thornton: The noble Lord makes a very good point. That is probably right.

Lord Hunt of Wirral: This has been a helpful short debate because those who are still seeking guidance are going to receive it. The objective justification that I have teased out of the noble Lord, Lord Lester, will do much to reassure people in the mean time. I beg leave to withdraw the amendment.
	Amendment 125C withdrawn.
	Schedule 23 agreed.
	Clause 195: Age
	Amendment 126 not moved.
	Amendment 126A
	 Moved by Lord Hunt of Wirral
	126A: Clause 195, page 121, line 6, leave out subsection (3)

Lord Hunt of Wirral: My Lords, we have tabled these amendments, 126A and 126B, to raise another issue which has been brought to our attention by the Delegated Powers and Regulatory Reform Committee. We have spoken a great deal about the order-making powers contained in Clause 195, which allow exceptions to be made to the provisions regarding age discrimination. We have debated the need for these regulations, their timing and which areas they will cover, and we have received assurances from the Minister that regulations would be introduced to allow exceptions relating to age-specific holidays such as those provided by Saga, insurance provision and other financial services. These would be in one order and due to come into being at the same time as these sections in the Act. I hope that the Chancellor of the Duchy of Lancaster can quickly reiterate that reassurance.
	We have not spoken about the nature of the power contained in subsections (3) and (6). Those who have read the third report of the committee on this Bill will know that it has raised significant concerns about the strength of these powers. Its worry centres around the fact that, with these subsections, orders can be made which also impose requirements by reference to guidance or documents specified in guidance. This guidance is obviously not necessarily subject to parliamentary procedure. Therefore, while the power in Clause 195(1) is subject to affirmative procedure, the sub-delegation powers which allow requirements to be made by reference to guidance or other documents contained within that, mean that these requirements are capable of avoiding the affirmative procedure. This means that it is possible to bypass parliamentary control over the nature and extent of the exceptions. We have therefore tabled Amendments 126A and 126B, which would remove these powers of sub-delegation. The committee objected not only to the use of these powers, but also that the Government had offered no justification for them. We have subsequently seen, in a letter from the Minister, justification which states that the guidance would be too detailed for legislation, but it was necessary to have an order which required guidance to be complied with because this would give certainty to business about how a business was allowed to operate.
	We have constantly fought for certainty for businesses and very much want to ensure that. The Government's amendment would allow a certain amount of scrutiny because it would make the date for the guidance to come into force subject to the negative procedure. Can the noble Baroness support this decision to compromise with the recommendations of the committee with evidence of any precedent to enshrine guidance in legislation in this way? Does she consider this to be an appropriate procedure and is the negative resolution strong enough? I should also like her to comment on any discussion she may or may not have had with the committee on this matter. Furthermore, can she clarify what would happen if parliamentary scrutiny showed that there were problems with the guidance? Would the only option then be to vote against the commencement date? If that were the case, would it not be more difficult for businesses, and in fact provide less certainty, because they would have to wait for the changed guidance to be implemented and go through the procedure again, even though there might be only a relatively minor change?
	We understand the need for clarity and certainty, but it would be very helpful to hear what discussions have been had with the Delegated Powers and Regulatory Reform Committee and whether it is satisfied now with the changes. After all, the noble Baroness will have noted that in the report the committee's reaction was strongly opposed to these measures. It is vital for your Lordships now to know what its response is in order that we can then say that we are content with the amendments. I beg to move.

Viscount Ullswater: My Lords, I must advise your Lordships that if this amendment is agreed, I will not be able to call Amendment 126C because of pre-emption.

Baroness Royall of Blaisdon: My Lords, I will first speak to government Amendments 126C and 135ZA and then address Amendments 126A and 126B, which have been tabled by the noble Baronesses, Lady Warsi and Lady Morris.
	The role of guidance in the exceptions from age discrimination outside the workplace has been raised in debates on the Bill, and, as the noble Lord, said, by the Delegated Powers Committee in its third report of 2010. The committee's concerns arise in essence because these provisions, which allow for sub-delegation, require strong justification. Government Amendment 126C addresses the committee's concern about sub-delegation by ensuring that guidance made under a power conferred by subsections (3) and (6) can come into force only on a date that is specified in an order. This order cannot be the same one as that specifying the exceptions to which the guidance relates, and it will subject to the negative procedure in Parliament.
	Government amendment 135ZA is consequential. It applies the provisions in Clause 200 for making orders and regulations under the Bill to those made by the Treasury, as well as those made by a Minister of the Crown. Parliament will be able to debate the provisions, which will be supported by any guidance in the context of the exceptions order, which is subject to the affirmative procedure. Amendment 126C then gives Parliament the opportunity to consider any guidance that is issued. I hope noble Lords will agree that, by including in the Bill scrutiny of the power to bring any guidance into force, this amendment satisfies the concerns expressed by the committee. We have, of course, been in dialogue with the committee.
	Guidance will not alter the scope of any of the exceptions. That would be outside the extent of the power, which therefore cannot be used to amend substantive provisions in the legislation. It will allow us to set out what steps service providers need to take to take advantage of the exceptions so that they are clear about what they need to do to comply with the legislation.
	The justification of the ability to make guidance is straightforward; it is there to ensure that exceptions under Clause 195 can operate as effectively as possible. Section 45 of the Sex Discrimination Act 1975, the effect of which is replicated in paragraph 22(3)(b) of Schedule 3 to the Bill, is a precedent. Under that provision, the use of sex as a factor in determining premiums is permitted on the basis of relevant and accurate actuarial and statistical data that are published and updated in accordance with Treasury guidance. Insurers who comply with the disclosure requirements, and who rely on the data that they disclose, can take advantage of the exception when setting premiums.
	We envisage similar arrangements for using age as a factor in the insurance industry. Without the ability to issue guidance, all the detail on how to comply with an exception would need to be set out in the Act. This would be cumbersome, and inconsistent with the drafting of the rest of the Bill. It would also be harder to make minor necessary changes to the detail to cater for developing practices and procedures in the financial services sector, for example, because a fresh affirmative resolution instrument would be required for every such change.
	The guidance-making provision is particularly important for financial services as age-based exceptions are likely to be complex, and considerable detail will be needed to provide sufficient certainty to service providers. The guidance will be needed for matters such as giving full effect to the proposals on transparency -data publication-and signposting and referrals by one insurance company to another. We aim to consult on the draft exceptions order in autumn 2010. We will consult on any amendments to that guidance unless circumstances require the amendments to be made urgently.
	However, guidance may not be limited to financial services. While the exceptions that are also planned for other services, such as age-based holidays and commercial discounts, are likely to be more straightforward, they may require such guidance-for instance, to make clear the steps that service providers must take to come within the exception. Health services are far more complex, and it would not be sensible to rule out the use of guidance in that sector too if it is eventually decided-and to the extent that it is decided-to use the power in Clause 195 to make exceptions in relation to health and social care. In most areas, having the exceptions in legislation will suffice, but at least some will need more detail so that service providers can understand their responsibilities. The noble Lord asked what would happen should the commencement date be voted against. It would mean that the guidance would not come into force.
	Amendments 126A and 126B, which would remove subsections (3) and (6) from Clause 195, would remove our ability to provide that clarity. If we could not make guidance, we would have two choices; either granting wide exceptions, which I think nobody would want, or including extremely detailed and often sector-specific provisions in the legislation. Neither of these are satisfactory options.
	We have listened to the Delegated Powers and Regulatory Reform Committee. Amendment 126C specifically addresses its concern about parliamentary scrutiny. It ensures that the guidance cannot be used if Parliament is not happy with it, while retaining the necessary advantages offered by guidance. The noble Lord asked me to reiterate assurances about how Clause 195 will be used. It will be just as the noble Lord described. The power will be used to make an order, subject to affirmative resolution, setting out exceptions to the ban from age discrimination to come into force on the day of the ban.
	The noble Lord referred to holidays for older people and exceptions. I reassure the noble Lord that we are doing further work and consultation to ensure that we get the exceptions right. On 27 January, we published a policy statement, which provides further clarity as to the exceptions which we are developing. I will ensure that the noble Lord receives a copy. There will be a further opportunity for consultation on the detail of the exceptions when we consult on the draft order that will contain them in the autumn. I trust that the noble Lord will feel able to withdraw his amendment.

Lord Hunt of Wirral: My Lords, the noble Baroness said that there had been dialogue with the Delegated Powers and Regulatory Reform Committee. It would be helpful if she could indicate whether the committee had expressed satisfaction that its concerns had been met.

Baroness Royall of Blaisdon: My Lords, as I understand it-it is my excellent officials who have been speaking to the officials from the Delegated Powers Committee-it is in agreement with and accepts what we are doing. However, it wishes to see how the debate pans out and to hear what I am saying at the Dispatch Box before all its concerns are assuaged.

Lord Hunt of Wirral: Therefore, I should say that I will now await the views of the committee before deciding whether to return to this matter at a later stage. In the mean time, I beg leave to withdraw the amendment.
	Amendment 126A withdrawn.
	Amendment 126B not moved.
	Amendment 126C
	 Moved by Baroness Royall of Blaisdon
	126C: Clause 195, page 121, line 24, at end insert-
	"( ) Guidance issued (or treated as issued) under a power conferred by virtue of subsection (3)(a) comes into force on such day as the person who issues the guidance may by order appoint; and an order under this subsection may include the text of the guidance or of extracts from it."
	Amendment 126C agreed.
	Amendments 127 and 128 had been withdrawn from the Marshalled List.
	Clause 195 agreed.
	Amendment 129 not moved.
	Amendment 129ZA
	 Moved by Lord Lester of Herne Hill
	129ZA: After Clause 195, insert the following new Clause-
	"Equality between spouses
	Abolition of a husband's duty to maintain his wife
	The rule of common law that a husband must maintain his wife is abolished."

Lord Lester of Herne Hill: My Lords, in speaking to Amendment 129ZA, I shall speak also to Amendments 129ZB to 129ZD and to the amendments to Clauses 208 and 209, which are related. The new clauses proposed under the amendments would remove three minor rules of law which treat husbands and wives unequally, and they equalise the legal position in respect of civil partners. The amendments would not only bring our law up to date by eliminating provisions that are clearly discriminatory and redundant, but would also remove the existing incompatibilities in UK law with Article 5 of Protocol 7 to the European Convention on Human Rights. That article protects the right to equality between spouses, except for any special provision the state needs to make to protect children. These amendments would leave it open to the Government to proceed with signature and ratification of Protocol 7 to the convention should it choose to do so, as I hope it will, to fulfil the long-standing commitment.
	The proposed new clause to be inserted under Amendment 129ZA abolishes the common-law duty for a husband to maintain his wife. This rule has long been superseded by statutory remedies for obtaining maintenance during a marriage. Consequently, I believe that there is no longer a need for a common law duty to maintain in favour of one spouse only.
	The new clause set out in Amendment 129ZB abolishes a second common law rule, that of the presumption of advancement. This presumption discriminates against husbands and is outdated. The presumption of advancement is a rule of evidence in court proceedings which provides that where there is no evidence to the contrary, a husband or father is presumably making a gift when he transfers property to his wife or child. But when a wife transfers property to her husband or a mother to her child, the presumption of advancement does not apply. Unless there is evidence to the contrary, she is presumed not to be making a gift and her husband or child hold the property on trust for her. The effect of the presumption of advancement is clearly discriminatory and its abolition will not have any unfair or undesirable effects, and therefore this amendment seeks to abolish the presumption.
	In order that the UK can ratify Protocol 7, abolition of the presumption of advancement is extended to Northern Ireland. I understand that the Northern Ireland Executive have agreed to this step in principle and will make the necessary arrangements for a legislative consent motion. I am grateful for their assistance.
	The final rule to be addressed is the statutory provision in respect of money and property derived from a housekeeping allowance currently in Section 1 of the Married Women's Property Act 1964. It provides that if a husband pays a housekeeping allowance to his wife, any savings or property derived from this allowance in the absence of an agreement to the contrary belongs to the husband and the wife in equal shares. However, if the wife pays the allowance to the husband, the Act makes no similar provision. Amendment 129ZC amends Section 1 of the 1964 Act so that it applies equally to husbands and wives, and money and property derived from a housekeeping allowance are owned by the husband and wife in equal shares regardless of who paid or received the allowance.
	The final clause set out in Amendment 129ZD inserts a new Section 70A into the Civil Partnership Act 2004 to provide for the equal division of housekeeping allowances paid by one civil partner to the other. This simply mirrors the effect of the previous amendment to the Married Women's Property Act for civil partners, ensuring that their rights are developed in parallel.
	I conclude by stressing that these amendments are long overdue and represent an important step in remedying outdated inequalities in our domestic law. In addition, I hope that the Government, if they accept them, will make good their commitment, which is on the record, to sign and ratify Protocol 7 to the convention, dating from the 1997 White Paper, Rights Brought Home. I beg to move.

Lord Hunt of Wirral: My Lords, I would like to make it clear that we support these amendments and the changes to the law that they would effect, but I will keep my remarks brief because we have little time in which to finish a large number of groups. This is, however, not the most appropriate time to get into discussions about Protocol 7, because there are wider issues to be addressed which deserve significant scrutiny. This is a debate for another time, and perhaps the Minister might be able to inform your Lordships when an appropriate time might be. In her Second Reading speech, she made reference to the fact that the Government would continue to seek a suitable legislative vehicle for these changes. Has she found such a vehicle yet? If so, can she give us a brief steer as to what vehicle is going to be used?
	Furthermore, can she confirm whether Amendment 129ZA is in fact necessary? The Question for Written Answer of the noble Lord, Lord Lester of Herne Hill, about what legislative changes would need to be made to enable the UK to ratify Protocol 7 was answered by the late Lord Williams of Mostyn, who said that the common law presumption of "advancement" would have to be altered. I am informed that the judgment of the House of Lords in the Stack and Dowden case has already changed the law in this respect. Am I correct in that assumption? If so, we recognise the good intentions of these amendments but regret that it may be that the noble Lord, Lord Lester of Herne Hill-I am nervous about ever saying this-is mistaken about the legal changes. However, where the noble Lord is concerned, I always stand to be corrected.

Lord Lester of Herne Hill: My Lords, it is not my intention to have a debate tonight about Protocol 7. That is a completely separate matter and no doubt can be debated hereafter if necessary. All I am concerned to do tonight is to sweep away archaic and outmoded provisions and secure equality between the spouses in that respect. One advantage of that would be to leave it open to the Government to take that further step. As far as the other point is concerned, I am not a family lawyer. I have not the faintest idea whether the comments of Lord Williams of Mostyn and the events in the House of Lords did or did not have the effect he said. However, it seems to me that the Government can now tell us whether or not they think that this is necessary.

Baroness Howe of Idlicote: My Lords, I wonder if I could probe a little bit. I would be equally loath to question anything that the noble Lord, Lord Lester, has said, but, with all the other things going on, there has not been time to pose these questions to him. I have in mind the considerable inequalities that still remain between husbands and wives, men and women, with regard to pay, the percentages who get the very top jobs, and pension arrangements. I have to say again that, as far as the European regulations were concerned, I found it extremely disturbing that on issues such as annuities, women and men were not treated the same even though they were equally entitled, by what they had earned over the years, to the same annuity. I still find these things worrying. I would like to be reassured that they are being taken into account; that the Minister has the answers to them; and, above all, that my noble friend Lord Lester took all that into account when he was deciding that all these things could just be finished with completely.

Baroness Royall of Blaisdon: My Lords, the Government support the amendments put forward by the noble Lord, Lord Lester of Herne Hill, which, as he notes, remove existing provisions that are discriminatory and out of date. These amendments also address those aspects of UK law that are incompatible with Article 5 of the 7th Protocol to the European Convention on Human Rights.
	Article 5 of the 7th Protocol provides that spouses shall have equality of rights and responsibilities between them and in their relations with their children both during the course of a marriage and in the event of its dissolution. It does not prevent states taking such measures as are necessary to protect the interests of the children. Of course our legislation makes the welfare of children the courts' paramount consideration when making decisions.
	These amendments therefore remove three minor legal provisions which discriminate between spouses. Although technically removing provisions which appear to benefit one spouse over the other, in reality the amendments confer no practical advantage or disadvantage on either spouse. The noble Lord, Lord Lester, set out very clearly the three provisions in question, so I will not reiterate those points.
	The noble Lord, Lord Hunt, asked me about new Clause 129ZC and whether it is absolutely necessary. He cited my erstwhile friend Lord Williams of Mostyn in relation to the amendment. We believe that new Clause 129ZC amends the final rule so that it applies equally to husbands and wives and so that property derived from a housekeeping allowance is owned by the husband and wife in equal shares regardless of who paid or received the allowance. So we do believe that it is necessary.
	In addition, new Clause 129ZD, tabled by the noble Lord, Lord Lester, inserts a new Section 70A into the Civil Partnership Act 2004 to provide, as he said, for the equal division of housekeeping allowances paid by one civil partner to another. This is in line with the Government's objective that civil partners should have parallel rights to those of married people, and the Government are very pleased to accept this amendment. As the noble Lord says, these amendments represent an important opportunity not only to remedy outmoded inequalities in our domestic law but also to remove this barrier to ratification of the 7th Protocol to the European Convention on Human Rights. The Government have long indicated their commitment to ratification of the protocol, and I am grateful to the noble Lord for tabling these amendments to the Bill, which will allow us to move this process forward.
	The noble Lord, Lord Hunt, asked about scrutiny of the 7th Protocol and what vehicle would be used for legislative changes. The amendments moved today suffice to make our law compatible with the 7th Protocol, so we have the perfect vehicle right before us today. We are considering that very vehicle now. There would need to be the usual consideration under the Ponsonby rule of the ratification of the 7th Protocol, but that cannot now be completed in this Parliament. In particular, it would require an affirmative vote in each House.
	The noble Lord asked whether presumption of advancement remained after the case of Stack v Dowden. The presumption of advancement still applies after that case, which relates only to ownership of the domestic home and not to other property.
	I well understand the concern expressed by the noble Baroness, Lady Howe of Idlicote, when she suggests that women still have a very tough time with regard to equality in insurance, pay and so on. I reiterate that the Government are totally committed to equality. We wish to remove the provisions that treat either husbands or wives in a discriminatory way. In practical terms, women will not lose out as a result of this Bill, as I have explained, and it will remove provisions that are unfair to men. We believe that accepting the amendments proposed by the noble Lord, Lord Lester, is a very good way forward, and I urge your Lordships to accept them.

Lord Lester of Herne Hill: My Lords, I am extremely grateful. I share the concerns expressed by the noble Baroness, Lady Howe, about wider inequalities that cannot be removed, but this is a very modest mouse of a series of proposals that are needed to scrap some archaic laws. It does not seek like a lion to sweep away all inequality against women, although I wish it could. The very fact that the Bill team could produce answers immediately to highly technical questions reminds me that I should apologise through the Committee to them for having singled out two members of the team for special praise. I am reminded that they are a team as a whole; by singling out two of them, I did not mean in any way to discriminate against the others. As for scrutiny of ratification of human rights treaties, or any treaties, the House knows that for years I have been saying that we need a mechanism in this House for a treaty scrutiny committee. I am delighted that the Ponsonby rule has been firmed up as it has, but it needs to be made stronger. Finally, above all, I thank the Minister and noble Lords very much for accepting the amendments.
	Amendment 129ZA agreed.
	Amendments 129ZB to 129ZD
	 Moved by Lord Lester of Herne Hill
	129ZB: After Clause 195, insert the following new Clause-
	"Abolition of presumption of advancement
	(1) The presumption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished.
	(2) The abolition by subsection (1) of the presumption of advancement does not have effect in relation to-
	(a) anything done before the commencement of this section, or
	(b) anything done pursuant to any obligation incurred before the commencement of this section."
	129ZC: After Clause 195, insert the following new Clause-
	"Amendment of Married Women's Property Act 1964
	(1) In section 1 of the Married Women's Property Act 1964 (money and property derived from housekeeping allowance made by husband to be treated as belonging to husband and wife in equal shares)-
	(a) for "the husband for" substitute "either of them for", and
	(b) for "the husband and the wife" substitute "them".
	(2) Accordingly, that Act may be cited as the Matrimonial Property Act 1964.
	(3) The amendments made by this section do not have effect in relation to any allowance made before the commencement of this section."
	129ZD: After Clause 195, insert the following new Clause-
	"Civil partners: housekeeping allowance
	(1) After section 70 of the Civil Partnership Act 2004 insert-
	"70A Money and property derived from housekeeping allowance
	Section 1 of the Matrimonial Property Act 1964 (money and property derived from housekeeping allowance to be treated as belonging to husband and wife in equal shares) applies in relation to-
	(a) money derived from any allowance made by a civil partner for the expenses of the civil partnership home or for similar purposes, and
	(b) any property acquired out of such money,
	as it applies in relation to money derived from any allowance made by a husband or wife for the expenses of the matrimonial home or for similar purposes, and any property acquired out of such money."
	(2) The amendment made by this section does not have effect in relation to any allowance made before the commencement of this section."
	Amendments 129ZB to 129ZD agreed.
	Amendment 129A not moved.
	Clause 196 : Harmonisation
	Amendments 130 and 131 not moved.
	Amendment 131A
	 Moved by Baroness Royall of Blaisdon
	131A: Clause 196, page 122, line 2, leave out "Before making the order" and insert "If the Minister proposes to make an order under this section"

Baroness Royall of Blaisdon: Government Amendments 131A, 131B, 134B, 134C, 134ZA, 134ZB and the new Clause in Amendment 134ZC concern the power in Clause 196 that would allow us to ensure that the Bill does not quickly fall into disrepair as a result of changes in European Law-what we call the "harmonisation power". As time is extremely tight, I hope that noble Lords will forgive me if I also address Amendment 134, tabled in the name of the noble Baronesses, Lady Warsi and Lady Morris, and also their intention to oppose the Question that the clause shall stand part of the Bill.
	Overall, the role that Europe has played in shaping our current body of equality legislation has been positive. Indeed, much of the relevant European law is based on legislation that was previously in place domestically. However, although it is based on similar concepts and structures, European law has from time to time required us to amend or extend our domestic regime. Our ability to do this without the aid of primary legislation is limited by the extent of the power in Section 2(2) of the European Communities Act 1972. As the scope of EU equality law is not generally as wide as domestic equality law, this has resulted in a patchwork of protection and a lot of confusion that led to the Discrimination Law Review-culminating in this Bill, one of the main aims of which is to simplify and harmonise the thicket of legislation that has grown up over more than 40 years.
	The harmonisation power will future-proof the Bill, so that changes required from Europe can be incorporated into domestic law without disrupting the harmonised approach we have achieved in the Bill. The Government have paid close attention to comments made by the Delegated Powers Committee about the power in its third report of the current Session. These have prompted us to bring forward amendments to which I shall turn after considering the committee's concerns.
	The committee noted that:
	"Clause 196 contains an exceptionally significant Henry VIII power",
	enabling the Government, when implementing an EU obligation, to extend the effect of the implementing provision beyond what is required by the obligation. Of course, I agree that this is a significant power; in fact it is vital to ensure that the Bill when enacted retains clarity and coherence. An ability to remove anomalies that may arise seems just common sense.
	The committee also noted that the Government did not provide a precedent, and that the power's extent is much wider than suggested by the example given in the Explanatory Notes. For a precedent, I point to Section 260 of the Civil Partnership Act 2004, which allows Orders in Council to make similar provision outside the scope of European law to those made using Section 2(2) of the European Communities Act, where European law applies. Most of the Bill's provisions are within the scope of Section 2(2) for almost all relevant purposes, and Schedule 24 makes it clear that there are large areas of the Bill to which the power does not apply at all.
	The committee was concerned that the power could be used to replicate in other strands the implementing provisions of an EU obligation which was restricted to a single strand. The power could indeed be used to copy over to the colour and nationality elements of the definition of race any provisions that may be required by European law for the rest; that can only be a positive thing. There will be times when, if we rely solely on Section 2(2), cracks will begin to appear and anomalies to creep in. Without this power, those anomalies will eventually accumulate to the disadvantage of all. However, in the light of the committee's concerns, we are seeking to place some further procedural constraints on this exercise.
	Government Amendment 131A will prevent Ministers circumventing the minimum 12 weeks' consultation that must take place prior to the power's use. We now accept that any weakening of this requirement would be hard to justify in view of the committee's concerns. Amendment 131B ensures that, where the consultation results in any changes of policy, those changes must in turn be consulted on.
	Amendment 134, tabled by the noble Baronesses, Lady Warsi and Lady Morris, seeks to increase the frequency with which a Minister must report to Parliament on the harmonisation power's use from five-yearly to annually. We originally opted for five-yearly reports, both because we expect this power to be used infrequently, and because when it is used full accountability will be built into the process. A requirement to report annually would be overkill. However, in response to the committee's concerns, Amendments 134ZA and 134ZB increase the frequency of ministerial reporting from every five years to every two years. We think this strikes an appropriate balance; I therefore ask the noble Baroness to withdraw her amendment-before she has even moved it, if she will forgive me.
	Amendment 134ZC inserts a new clause that makes detailed provision about the making of orders under this power. It requires, in particular, the Minister to lay an explanatory document before the House alongside a draft order. This document must say why the harmonising provision is being made, and explain why the Minister considers that the conditions for using the power are met. It must give details of the consultation, the responses received and any changes to the proposals made as a result of those responses. This procedure will enable Parliament to challenge the Government in a detailed and informed way each time they seek to use this power.
	Finally, I will speak to Amendments 134B and 134C, which are consequential to the substantive amendments relating to exceptions for marriage and broadcasting respectively, which the Government accepted earlier in this Committee. We do not consider that it would be appropriate for the harmonisation power to be used to affect these exceptions-hence Amendments 134B and 134C insert references to the relevant provisions into Schedule 24, putting them outside the scope of the harmonisation power. I beg to move.

Lord Hunt of Wirral: I am not sure that I need to speak to our amendments, as they have already been opposed before I have said anything. I shall only ask the noble Baroness: is the Delegated Powers and Regulatory Reform Committee now satisfied with what the Government are proposing?

Baroness Royall of Blaisdon: My Lords, I think it is fair to say that that committee is broadly satisfied. As this Committee will know, the Delegated Powers Committee does not like broad harmonisation powers, but it accepts that this is a consolidation Bill and that this is a sensible way forward.

Lord Hunt of Wirral: My Lords, it is of course not just a consolidation Bill. We will have to return to all this on Report; we do not have time now. Suffice it to say that our concern is that there are constant views that the Government are gold-plating directives that emanate from Brussels. Now they are seeking to fast-track that gold-plating. They should proceed with considerable caution down that dangerous road.

Baroness Royall of Blaisdon: My Lords, first, I understand that I misled the House; apparently, the Delegated Powers Committee does not particularly like what we are doing here. I did not seek to mislead the House. As I explained, the committee does not like broad harmonisation powers. I accept that the Government have, in the past, sought to gold-plate certain things in certain European directives. However, in dealing with the Bill in this way we are trying to ensure coherent policy-making in the future. We are trying to future-proof the Bill, but I entirely accept the concerns expressed by the noble Lord and that he will wish to return to them at a later stage.
	Amendment 131A agreed.
	Amendment 131B
	 Moved by Baroness Royall of Blaisdon
	131B: Clause 196, page 122, line 4, leave out subsections (4) and (5) and insert-
	"(4) If, as a result of the consultation under subsection (3), the Minister thinks it appropriate to change the whole or part of the proposal, the Minister must carry out such further consultation with respect to the changes as the Minister thinks appropriate."

Baroness Harris of Richmond: If Amendment 131B is agreed, I cannot call Amendment 132 because of pre-emption.
	Amendment 131B agreed.
	Amendments 132 to 134 not moved.
	Amendments 134ZA and 134ZB
	 Moved by Baroness Thornton
	134ZA: Clause 196, page 122, line 26, leave out "5" and insert "2"
	134ZB: Clause 196, page 122, line 28, leave out "5" and insert "2"
	Amendments 134ZA and 134ZB agreed.
	Clause 196, as amended, agreed.
	Amendment 134ZC
	 Moved by Baroness Thornton
	134ZC: After Clause 196, insert the following new Clause-
	"Harmonisation: procedure
	(1) If, after the conclusion of the consultation required under section 196, the Minister thinks it appropriate to proceed with the making of an order under that section, the Minister must lay before Parliament-
	(a) a draft of a statutory instrument containing the order, together with
	(b) an explanatory document.
	(2) The explanatory document must-
	(a) introduce and give reasons for the harmonising provision;
	(b) explain why the Minister thinks that the conditions in subsection (1) of section 196 are satisfied;
	(c) give details of the consultation carried out under that section;
	(d) give details of the representations received as a result of the consultation;
	(e) give details of such changes as were made as a result of the representations.
	(3) Where a person making representations in response to the consultation has requested the Minister not to disclose them, the Minister must not disclose them under subsection (2)(d) if, or to the extent that, to do so would (disregarding any connection with proceedings in Parliament) constitute an actionable breach of confidence.
	(4) If information in representations made by a person in response to consultation under section 196 relates to another person, the Minister need not disclose the information under subsection (2)(d) if or to the extent that-
	(a) the Minister thinks that the disclosure of information could adversely affect the interests of that other person, and
	(b) the Minister has been unable to obtain the consent of that other person to the disclosure.
	(5) The Minister may not act under subsection (1) before the end of the period of 12 weeks beginning with the day on which the consultation under section 196(3) begins.
	(6) Laying a draft of a statutory instrument in accordance with subsection (1) satisfies the condition as to laying imposed by subsection (8) of section 200, in so far as that subsection applies in relation to orders under section 196."
	Amendment 134ZC agreed.
	Schedule 24 : Harmonisation: exceptions
	Amendment 134A not moved.
	Amendment 134AA
	 Moved by Lord Lester of Herne Hill
	134AA: Schedule 24, page 218, line 15, at end insert-
	"Sections (Abolition of husband's duty to maintain his wife) to (Civil partners: housekeeping allowance) (family property)"
	Amendment 134AA agreed.
	Amendments 134B and 134C
	 Moved by Baroness Thornton
	134B: Schedule 24, page 218, line 20, at end insert-
	"( ) Part 5A (marriage);"
	134C: Schedule 24, page 218, line 22, at end insert-
	"( ) Part 6A (television, radio and on-line broadcasting and distribution);"
	Amendments 134B and 134C agreed.
	Schedule 24, as amended, agreed.
	Clauses 197 and 198 agreed.
	Schedule 25 agreed.
	Clause 199 : Exercise of power
	Amendment 135
	 Moved by Baroness Thornton
	135: Clause 199, page 124, line 3, at end insert-
	"( ) A statutory instrument containing an Order in Council under section 82 (offshore work) is subject to annulment in pursuance of a resolution of either House of Parliament."

Baroness Thornton: My Lords, in moving Amendment 135, I will speak to Amendments 136, 135A, 136ZA, 136ZAC, 136ZB, 136ZZZA, 136ZZZB and 136ZCC, which relate to the procedure for parliamentary control of secondary legislation. I am indebted to the Delegated Powers and Regulatory Reform Committee for bringing these points to our attention.
	Although it has not been spoken to, I should like to comment on Amendment 136ZZA in the names of the noble Baronesses, Lady Warsi and Lady Morris, which seeks to probe why the provisions for the control of secondary legislation do not currently apply to an order which makes provision in consequence of the commencement of some or all of the Bill, but which is in a separate instrument, as provided for in Clause 200(7). The absence of such control was noted by the Delegated Powers Committee in its third report of the current Session. This was not an oversight. We had already provided that any such orders that made consequential amendments to primary legislation should be subject to the affirmative procedure. However, we did not believe that such control was strictly necessary for other orders because they can contain only minor, consequential and transitional provisions. But equally this is not an issue where we would seek disagreement with the committee, so we are happy to accept the principle behind the noble Baronesses's amendment on the basis that it responds to the committee's findings. We have accordingly introduced our own Amendments 136ZZZA and 136ZZZB, not because that of the opposition is defective, but because the advice of counsel is that it would be clearer to take the slightly less convoluted language we propose. We therefore urge the noble Baronesses not to press their amendment.
	The Delegated Powers and Regulatory Reform Committee in its report on Parts 1 to 5 of the Bill recommended that an "affirmative" parliamentary control procedure apply to any regulations made by Ministers to amend Section 1, that add or remove public authorities subject to Clause 1-the public sector duty regarding socio-economic inequalities. We, the Scottish Government and Welsh Assembly are grateful for the recommendation of the committee and happy to accept that an affirmative procedure should apply to such regulations. The socio-economic duty is obviously novel and innovative, and it is appropriate that Parliament should give careful consideration to any changes we propose to the list of public bodies subject to it. Amendment 135A therefore makes the necessary changes to Clause 200 to ensure that any regulations under Section 2 made by Ministers of the Crown are subject to the affirmative procedure. Amendments 136ZA and 136ZB make the necessary changes to Clauses 201 and 202 respectively to ensure that regulations made by the Welsh and Scottish Ministers under Section 2 are also subject to the affirmative procedure.
	The Delegated Powers Committee identified in its second report of this Session an omission in relation to the parliamentary control of Orders in Council, which Amendment 135 rectifies. While the vast majority of secondary legislation in the Bill will be delivered by ministerial order or regulations, Clause 82, headed "Offshore work", uniquely uses an Order in Council to specify where and how the Bill, in so far as it relates to work, applies to offshore workers. An Order in Council is appropriate because Clause 82 concerns the application of the Bill beyond UK territorial waters. Due to an oversight, the Bill does not provide a parliamentary procedure for Clause 82 because it currently contains no reference to "Orders in Council". Such orders should, as with other secondary legislation, be capable of annulment by either House of Parliament. Amendment 135 achieves this.
	I am again indebted to the Delegated Powers and Regulatory Reform Committee for bringing to our attention a slight uncertainty in the drafting of Clause 200. As it highlighted, this formulation could be regarded as ambiguous as to whether it includes those special cases mentioned in subsection (3) of the clause which should be subject to the negative procedure. Amendment 136 therefore clarifies that these orders should be subject to that procedure. Amendments 136ZAC and 136ZCC do exactly the same in respect of the powers of the Welsh and the Scottish Ministers. I beg to move.

Baroness Morris of Bolton: My Lords, we are grateful to the Government for tabling Amendments 135, 136, 136ZAC and 136ZCC, which are designed to ensure that the provisions contained in the Bill do not escape parliamentary scrutiny because of drafting omissions. The number of drafting omissions that we are addressing today further reinforces our belief in the absolute fundamental necessity of the effective parliamentary scrutiny the Bill has received in your Lordships' House, notwithstanding our time today being squeezed-although we had a little extra time while the Government found the noble Lord, Lord Myners. Therefore, I am glad to see the inclusion of these amendments in the Bill.
	We are also delighted to see that the Government have tabled Amendments 136ZZZA and 136ZZZB, which address the Delegated Powers and Regulatory Reform Committee's concerns raised by our Amendment 136ZZA regarding the exercise of subordinate legislation powers. We are pleased that, after consideration, the Government have decided to accept the recommendation.
	Amendment 135 agreed.
	Clause 199, as amended, agreed.
	Clause 200 : Ministers of the Crown
	Amendments 135ZA and 135A
	 Moved by Baroness Thornton
	135ZA: Clause 200, page 124, line 6, at end insert "or the Treasury"
	135A: Clause 200, page 124, line 13, leave out paragraph (a)
	Amendments 135ZA and 135A agreed.
	Amendment 135AA not moved.
	Amendment 135AB
	 Moved by Baroness Thornton
	135AB: Clause 200, page 124, line 16, at end insert "that provides for the omission of an entry where the authority concerned has ceased to exist or the variation of an entry where the authority concerned has changed its name"
	Amendment 135AB agreed.
	Amendment 135B not moved.
	Amendments 136 to 136ZZZB
	 Moved by Baroness Thornton
	136: Clause 200, page 124, line 33, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"
	136ZZZA: Clause 200, page 124, line 38, after "that" insert "-
	(i) "
	136ZZZB: Clause 200, page 124, line 40, at end insert ", and
	(ii) is not made in reliance on section 199(7)"
	Amendments 136 to 136ZZZB agreed.
	Amendment 136ZZA not moved.
	Amendment 136ZZB
	 Moved by Lord Hunt of Wirral
	136ZZB: Clause 200, page 125, line 1, leave out subsection (10)

Lord Hunt of Wirral: My Lords, this amendment has again been brought to our attention by the Delegated Powers and Regulatory Reform Committee. It highlighted that subsection (1) of Clause 200 disapplies the hybrid instrument procedure for all the powers subject to the affirmative instrument in this Bill. I am grateful that the Minister and her team have looked into the eight affirmative instruments already in light of the report of the committee. We now see that we were right to table these amendments and raise the concern that perhaps it was not necessary to disapply the hybridity procedure from all these instruments when it applies only to a few. The Government have recognised that and have now limited the disapplication.
	We are grateful that that has now been changed but rather concerned that there appear to have been so many drafting errors or broad brush powers contained in a Bill that the Government have had more than enough time to scrutinise themselves again and again. It is concerning that there are so many changes to be made and worrying that there may be many more that have yet to be found. This is a complex Bill and it is vital that the Government's equality legacy is not riddled with errors and omissions. I beg to move.

Baroness Harris of Richmond: If Amendment 136ZZB is agreed, I cannot call Amendment 136ZZC because of pre-emption.

Baroness Thornton: My Lords, I shall speak to Government Amendment 136ZZC and respond to Amendment 136ZZB spoken to by the noble Lord.
	Amendment 136ZZB would remove the blanket exemption from the hybrid procedure that Clause 200(10) currently affords the Bill. This has been tabled following the Delegated Powers and Regulatory Reform Committee's decision to draw the House's attention to the provision in its third report of this Session.
	As the noble Lord remarked, the Government have been re-examining subsection (10) in light of the committee's comments, and we accept that it would be helpful to clarify on the face of the Bill precisely when we consider the hybrid procedure should be disapplied if it arises. However, we do not think it necessary to remove the exception completely as the noble Lord proposed.
	The reality is we think it highly unlikely that powers in the Bill would be exercised in such a way that the House would consider the hybrid procedure to be applicable, but it is a theoretical possibility. In a handful of cases where those circumstances might arise, we consider the hybrid procedure would be unwarranted so we think it appropriate to provide that the procedure should not apply in specified cases.
	There are safeguards in these cases. Before adding any new bodies to either of the lists, for example, under the socio-economic duty and the public sector equality duty, and making specific public sector equality duty regulations, there will have to be consultation with those affected, as well as with the Commission and relevant devolved Administrations where appropriate. Similar consultation will be carried out before the specific duty regulations are made. We have also provided that orders and regulations made using these powers will be subject to the affirmative resolution procedure.
	Government Amendment 136ZZC narrows the exception down to the clauses which could theoretically be subject to the hybrid procedure; for the reasons I have explained, we do not think that would be warranted.
	I hope that the House will agree that our proposal is measured and that the noble Lord will feel able to withdraw his amendment.

Lord Hunt of Wirral: My Lords, that reinforces the debt of this House to the Delegated Powers and Regulatory Reform Committee, its chairman, the noble Lord, Lord Goodhart, and the members of the committee-they have done an invaluable job. I hope that the Government will continue to listen to their advice. In the mean time, I beg leave to withdraw the amendment.
	Amendment 136ZZB withdrawn.
	Amendment 136ZZC
	 Moved by Baroness Thornton
	136ZZC: Clause 200, page 125, line 1, leave out "mentioned in subsection (2) or (4)" and insert "containing an order or regulations under section 2, 150, 152, 153(2) or 154(5)"
	Amendment 136ZZC agreed.
	Clause 200, as amended, agreed.
	Clause 201 : The Welsh Ministers
	Amendments 136ZZD to 136ZAD
	 Moved by Baroness Thornton
	136ZZD: Clause 201, page 125, line 8, at end insert "an order or"
	136ZZE: Clause 201, page 125, line 10, after "The" insert "orders and"
	136ZA: Clause 201, page 125, line 10, at end insert-
	"( ) regulations under section 2 (socio-economic inequalities);"
	136ZAA: Clause 201, page 125, line 10, at end insert-
	"( ) an order under section 150 (power to amend list of public authorities for the purposes of the public sector duty);"
	136ZAB: Clause 201, page 125, line 15, at end insert -
	"( ) But a statutory instrument is not subject to the affirmative procedure by virtue of subsection (2) merely because it contains an order under section 150 that provides for-
	(a) the omission of an entry where the authority concerned has ceased to exist, or
	(b) the variation of an entry where the authority concerned has changed its name."
	136ZAC: Clause 201, page 125, line 16, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"
	136ZAD: Clause 201, page 125, line 18, after second "the" insert "order or"
	Amendments 136ZZD to 136ZAD agreed.
	Clause 201, as amended, agreed.
	Clause 202 : The Scottish Ministers
	Amendments 136ZAE to 136ZB
	 Moved by Baroness Royall of Blaisdon
	136ZAE: Clause 202, page 125, line 26, at end insert "an order or"
	136ZAF: Clause 202, page 125, line 28, after "The" insert "orders and"
	136ZB: Clause 202, page 125, line 28, at end insert-
	"( ) regulations under section 2 (socio-economic inequalities);"
	Amendments 136ZAE to 136ZB agreed.
	Amendment 136ZC not moved.
	Amendments 136ZCA to 136ZCD
	 Moved by Baroness Royall of Blaisdon
	136ZCA: Clause 202, page 125, line 30, at end insert-
	"( ) an order under section 150 (power to amend list of public authorities for the purposes of the public sector duty);"
	136ZCB: Clause 202, page 125, line 35, at end insert-
	"( ) But a statutory instrument is not subject to the affirmative procedure by virtue of subsection (2) merely because it contains an order under section 150 that provides for-
	(a) the omission of an entry where the authority concerned has ceased to exist, or
	(b) the variation of an entry where the authority concerned has changed its name."
	136ZCC: Clause 202, page 125, line 36, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"
	136ZCD: Clause 202, page 125, line 38, after second "the" insert "order or"
	Amendments 136ZCA to 136ZCD agreed.
	Clause 202, as amended, agreed.
	Clause 203 agreed.
	Schedule 26 : Amendments
	Amendment 136ZD
	 Moved by Baroness Royall of Blaisdon
	136ZD: Schedule 26, page 223, line 36, at end insert-
	"( ) an act which is unlawful because it amounts to a contravention of section 60(1) of that Act (or to a contravention of section 110 or 111 that relates to a contravention of section 60(1)) (enquiries about disability and health),"
	Amendment 136ZD agreed.
	Amendment 136ZE not moved.
	Amendment 136A not moved.
	Schedule 26, as amended, agreed.
	Schedule 27 : Repeals and revocations
	Amendment 137 not moved.
	Schedule 27 agreed.
	Clause 204 : General interpretation
	Amendment 138
	 Moved by Baroness Royall of Blaisdon
	138: Clause 204, page 126, line 11, after "not" insert ", subject to subsection (4A),"
	Amendment 138 agreed.
	Amendment 138A
	 Tabled by Lord Low of Dalston
	138A: Clause 204, page 126, line 40, at end insert-
	""substantial" means more than minor or trivial;"

Lord Low of Dalston: My Lords, I have an unanswerable case to present in support of Amendment 138A, but, recognising that we are extremely pressed for time and all sprinting for the tape, and in the belief that the Government will by now have located the noble Lord, Lord Myners, I will not move the amendment on the understanding that I have reached with the Government that they will facilitate discussions between their lawyers and the lawyers whom I have consulted, in order that we may arrive at an agreed way forward with the amendment.
	Amendment 138A not moved.
	Amendment 139
	 Moved by Baroness Royall of Blaisdon
	139: Clause 204, page 127, line 8, at end insert-
	"(4A) Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic."
	Amendment 139 agreed.
	Clause 204, as amended, agreed.
	Clauses 205 and 206 agreed.
	Schedule 28 : Index of defined expressions
	Amendment 140 not moved.
	Schedule 28 agreed.
	Clause 208 : Commencement
	Amendment 141
	 Moved by Lord Lester of Herne Hill
	141: Clause 208, page 128, line 24, at end insert-
	"( ) Sections (Abolition of husband's duty to maintain his wife) to (Civil partners: housekeeping allowance) come into force on such a day as the Lord Chancellor may by order appoint."
	Amendment 141 agreed.
	Clause 208, as amended, agreed.
	Clause 209 : Extent
	Amendments 142 and 143
	 Moved by Lord Lester of Herne Hill
	142: Clause 209, page 128, line 29, after "houses)" insert "and sections (Abolition of husband's duty to maintain his wife) to (Civil partners: housekeeping allowance) (family relationships)"
	143: Clause 209, page 128, line 34, at end insert-
	"( ) section (Abolition of presumption of advancement)"
	Amendments 142 and 143 agreed.
	Clause 209 agreed.
	Clause 210 agreed.
	In the Title:
	Amendment 144
	 Moved by Lord Lester of Herne Hill
	144: In the Title, line 11, after "opportunity;" insert "to amend the law relating to rights and responsibilities in family relationships;"
	Amendment 144 agreed.
	Title, as amended, agreed.
	House resumed.
	Bill reported with amendments.

Terrorist Asset-Freezing (Temporary Provisions) Bill

Main Bill Page
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Remaining Stages

Report received. Standing Order 47 having been dispensed with, the Bill read a third time and passed.
	House adjourned at 10.32 pm.